Family Law FAQs
Divorce and property division
- I have been divorced for a while and would like to change some of the provisions in the divorce decree. If my ex and I agree, would the changes be valid?
- What factors does the court consider to divide marital property?
- Am I entitled to part of my spouse's business?
- If my spouse and I cannot agree on the division of certain household items, will we have to litigate the division?
- Are my employment benefits and frequent flyer miles considered marital property?
- What happens to a couple's property when they divorce, remarry, and then divorce again?
- Will I be entitled to part of the stock given to my spouse as a gift during our marriage?
- If we divorce, will I receive credit for the down payment I made on our house?
- How will my savings account be divided during our divorce proceedings?
- Is my spouse entitled to any of my accident settlement if we divorce?
- Can I argue that my spouse earned some of the income from our small business?
- Will I be responsible for my spouse's school loans?
- Can property acquired prior to marriage be divided upon divorce?
- Can I appeal a property division court ruling?
Child support, custody, and visitation
- My ex is behind on child support. What recourse do I have?
- I am the custodial parent. Can I deny visitation?
- I am the noncustodial parent. Can I decide not to accept visitation?
- I will be moving to another state soon, with permission from my ex. The cost of living is higher in the new location. Will this entitle me to an increase in child support?
- My income has increased since the court ordered child support. Can I be penalized for not paying more because of my increased income?
- Since our divorce, my ex-spouse has been promoted at work several times, and there has been significant income increase. Can I ask for an increase in his support payments?
- Both my ex and I have moved from the state where we got divorced. He now makes more money and I need more support. Where do I file?
- Can I get an increase in my child's support order because the child is older?
- Can same-sex partners petition for visitation rights of a child born during their relationship?
- Can a stepfather get visitation after he divorces the child's mother?
Adoption
- What is the procedure for adoption?
- I would like to legally adopt my grandchild. How do I do that?
- I would like to legally adopt my stepchild. How do I do that?
Other
- Can I get rid of my financial obligations from my divorce in bankruptcy?
- How do I handle a potential IRS inquiry about tax returns filed by my ex-spouse?
Divorce and property division
I have been divorced for a while and would like to change some of the provisions in the divorce decree. If my ex and I agree, would the changes be valid?
After your divorce, you might find it necessary or desirable to modify one or more of the stipulations in your divorce decree, property settlement, or custody and support arrangements. You must follow proper procedure if you want that modification or set of modifications to be valid. An experienced family law attorney can work with you to ensure your desired changes are valid.
What factors does the court consider to divide marital property?
Florida courts consider the following criteria in property division:
- Length of the marriage
- Either person's prior marriage
- Each person's age, health, station, income, vocational skills, employability, estates, liabilities, and needs
- Contribution by one spouse to the education, training, or increased earning power of the other spouse
- Opportunity to acquire future income and assets
- Sources of income, including medical, retirement, insurance, and other benefits
- Services rendered as a parent, wage earner, or homemaker
- Value of each person's property
- Standard of living established during the marriage
- Tax consequences of the distribution
- Custodial parent designation
Am I entitled to part of my spouse's business?
Generally, an asset such as a business that a spouse owns prior to marriage is considered ''separate property'' and would be owned by the spouse who started the business. But if the business has appreciated during the marriage, the appreciation value may be considered marital property.
Some states will require more than just appreciation during the marriage. Some will require that either or both of the spouses have contributed to the business, through labor, money or other contribution.
The presence of a business can really complicate property division. If you are involved in such a divorce, it might be best to consult an attorney.
If my spouse and I cannot agree on the division of certain household items, will we have to litigate the division?
Most divorce court judges and lawyers try to prevent people from litigating the division of household items, because it often will cost more money in legal fees to fight over those items than it would to buy new ones. But if you and your ex-spouse cannot agree, it is likely you will need to seek legal help, because your property settlement will not be complete until these items are divided. The judge will simply divide them in a manner neither of you like.
Are my employment benefits and frequent flyer miles considered marital property?
In most cases, the benefits you have accumulated through your employment during the time you were married are subject to division in a divorce. Your spouse may be entitled to one-half of the value of your pension and 401(k) from the date of marriage until the date of separation or divorce. The same may be true for your unused vacation time and frequent flyer miles.
What happens to a couple's property when they divorce, remarry, and then divorce again?
When parties remarry, the property may once again become marital property and be subject to division on a second divorce. A court may also look to the first marriage when determining the length of the marriage in the second divorce. In general, the longer the marriage, the more a court is likely to find that property is marital rather than separate property.
Will I be entitled to part of the stock given to my spouse as a gift during our marriage?
If the stock transferred to your husband as part of his compensation for working for a company, you may be entitled to a portion of the stock when dividing your property. If your spouse received the stock as a gift, it may be considered separate property. In most states, gifts are considered separate, non-marital property and are generally not subject to division in a divorce.
If we divorce, will I receive credit for the down payment I made on our house?
In most states, an asset that a spouse owned prior to marriage is considered the separate property of that spouse, so long as it has not been combined with marital property to the point where you cannot tell what is separate and what is marital. Separate property is excluded from division in a divorce, and the spouse with the separate property keeps that property. The equity created in your home by your down payment would probably be your separate property and you would be entitled to at least the amount of the down payment and possibly the interest on your down payment based on the overall appreciation of the house.
How will my savings account be divided during our divorce proceedings?
In most states, a person's separate property owned before marriage remains that person's property after a divorce, as long as it isn't combined with marital property and becomes untraceable. This is known as ''commingling.'' Any money put into the account during the marriage will most likely be considered marital property. As long as you can properly identify the funds and trace their movement back and forth through the account, they should remain separate property that will be returned to you at the time of a divorce, rather than be divided as marital property. This can be very difficult where the accounts are subject to withdrawals, or where money is withdrawn to pay expenses. The question then becomes ''Which money was withdrawn?'' If that cannot be determined, the account may become marital property. In general, it is usually best to keep separate property separate, rather than counting on it being returned upon divorce.
Is my spouse entitled to any of my accident settlement if we divorce?
In general, payment for pain and suffering resulting from an injury is the separate property of the injured person. However, the portion of the payment that makes up for lost earnings and expenses resulting from the accident may be considered a marital asset that may be divided between you and your spouse in a divorce. You should keep your personal injury settlement money separate from other money that might be considered marital property.
Can I argue that my spouse earned some of the income from our small business?
Courts will review this type of situation on a case-by-case basis. Commonly, when a married couple has a small business that both help operate, but the couple's joint tax return shows that the wife earned no income as a ''homemaker,'' all of the income from the business will be attributed to the husband for support purposes.
Will I be responsible for my husband's school loans?
Generally, a court will divide marital debt ''equitably,'' in the same way marital assets are divided. If the school loans were made during the marriage and you both benefited from them, that is, some of the loan money was used to buy food or pay rent, you could have to repay some of the loans.
Can property acquired prior to marriage be divided upon divorce?
Generally, assets owned by either spouse prior to the marriage will remain that spouse's separate property after the marriage ends, and won't be distributed by a court as marital property. In some states, the court can define the starting date of a marriage as being earlier than the actual marriage date if it is ''equitable'' to do so.
Can I appeal a property division court ruling?
All states have a ''statute of limitations,'' a period of time after the finalization of the divorce in which a party may file a notice of appeal. The time limit can often be fairly short, like a month. After that, any chance of opening the judgment depends on the facts of the judgment, and state law. Some states have an open-ended rule that allows a party to seek relief from an unjust order for many years. However, ''unjust'' is very different than simply not liking the judgment.
Child custody, support, and visitation
My ex is behind on alimony and child support. What recourse do I have?
You can go to the court clerk’s office in the court that ordered child support and request the clerk issue a garnishment against the supporting parent’s wages. To do this, you need to know your ex’s place of employment, address, and Social Security number. If your ex is at least one month behind, the court sends a garnishment to the employer and the support will be taken out of his or her paycheck. You could also go after your ex’s property, but this is a longer process and might not be as satisfying, since cars and homes are often leased and mortgaged. Another option is to file a petition for contempt and get an order to show cause why the payments are not being made. This puts your ex back in court. A skilled family law attorney can review the options with you and guide you to the best solution for your needs.
I am the custodial parent. Can I deny visitation?
The purpose of visitation rights is for children of a divorced couple to understand they have two parents who are entitled to love their children and be loved in return. If the children come back from a weekend with their non-custodial parent and are upset or tell you they do not want to go anymore, that is not reason to deny visitation unless their health and welfare are endangered by the visitation. If you are having a disagreement with your ex or harbor ill feelings, that is not reason to deny visitation. However, the noncustodial parent is entitled to reasonable visitation. That means if he or she wants to see your child in the middle of the night or is drunk or stoned, you do not have to permit visitation.
I am the noncustodial parent. Can I decide not to accept visitation?
You are entitled to reasonable visitation. If you are unable to comply with the visitation schedule, you and your ex might be able to work out alternative arrangements. Remember your children deserve the love of both their parents.
I will be moving to another state soon, with permission from my ex. The cost of living is higher in the new location. Will this entitle me to an increase in child support?
Depending on the change in your income, you may have cause to modify the child support figure. If the court were to modify the amount of child support because of an increase in living expenses, it would most likely have to find that the modification is in the best interests of your children. Keep in mind, though, that any visitation expenses for your ex-husband increase due to travel, etc., and may offset any increase in living expenses on your part.
My income has increased since the court ordered child support. Can I be penalized for not paying more because of my increased income?
In most situations, child support increases are only retroactive to the date of the filing of a motion to modify child support. However, many courts and child support collection agencies require noncustodial parents to report their income on a regular basis to ensure smooth modification proceedings. If your orders do that, and you failed to do so, you might have some problems. If your orders do not require such, normally there is no obligation to pay anything more than what was ordered.
Since our divorce, my ex-spouse has been promoted at work several times, and there has been significant income increase. Can I ask for an increase in his support payments?
Most states have a two-pronged test for determining whether child support should be increased. The parent requesting the increase must show that—
- The person paying support has an increased income
- The child has increased needs
There are states, however, that allow an increase based just on an increase in ability to pay. In many states, the person requesting an increase must show there has been a "change in circumstances."
Both my ex and I have moved from the state where we got divorced. He now makes more money and I need more support. Where do I file?
Most likely, the Uniform Interstate Family Support Act ("UIFSA") applies to your situation. This uniform law attempts to avoid multi-state support actions by favoring litigation in the state where the child is living. The state that originally issued the child support order, has exclusive, continuing jurisdiction to modify the order unless both parents and the child no longer live in that state. In this circumstance, the state in which you and your child live should have jurisdiction to modify the support order. The state in which the original order was entered simply has jurisdiction to enforce its own order.
If the state where you live has adopted the UIFSA (a majority of states have), your modification action must take place in that state under its child support laws.
Can I get an increase in my child's support order because the child is older?
It depends on state law. Some states look only at the income of the parents, and the expenses of age are figured into the calculation. Other states also look to the child's needs as well as the parental income.
Can same-sex partners petition for visitation rights of a child born during their relationship?
Most states have yet to make definitive rulings on gay rights topics. Same sex marriages are not recognized in most states. The issue of gay marriages has not, however, prevented same-sex partners from getting certain parental rights after those relationships end. For example, the New Jersey Supreme Court upheld visitation rights to the non-biological "parent" of a lesbian relationship. The couple together cared for twins born by artificial insemination. After splitting up, the non-biological partner petitioned the court for joint custody of the children and the court award the non-biological partner visitation rights. The court reasoned that joint custody would be "unnecessarily disruptive" to the children because the non-biological partner had not been involved with the children for four years, but the non-biological parent carried the status of "psychological parent" and had the right to share in parenting duties despite the birth mother's objections.
Can a stepfather get visitation after he divorces the child's mother?
It depends on state law. In some states, the state has an interest in assuring that the child of a broken marriage receives the attention, care and concern it is presumed they would have received had the marriage and family life not been drastically altered by the divorce action. In such states, visitation for a stepparent is a definite possibility.
Adoption
What is the procedure for adoption?
In Florida, the court’s primary concern is the best interests of the child. An experienced attorney familiar with the state’s adoption procedures can help ease the adoption process.
Whether a child is placed in a new home privately or an adoption agency, a petition for adoption must be filed. The child is placed in the custody of the new parents for a period of six months to one year before the adoption becomes final. This allows home study—the monitoring of the child’s welfare in the new home through a court's authorized agency visits to the home. At the end of the period, a court hearing reviews the parents' qualifications and, if satisfactory, grants a permanent decree of adoption. In this manner, the child gains all the rights of a natural child of the adoptive parents and a new birth certificate is issued, showing the adoptive parents as the child's legal parents.
I would like to legally adopt my grandchild. How do I do that?
If you are a blood relative of the child, the court may decide to waive the probationary period and home study. However, the petition still needs to be filed.
I would like to legally adopt my stepchild. How do I do that?
If you want to adopt your stepchild, the process is similar to other adoptions. This includes the child's consent if the child is 14 or older. In addition, the natural parent must also consent and have his or her parental rights terminated as part of the adoption proceedings.
Other
How do I handle a potential IRS inquiry about tax returns filed by my ex-spouse while we were still married?
Since July 1998, federal tax law has included ''innocent spouse'' relief: if a taxpayer files a joint tax return but then divorces, legally separates, or lives apart from his or her spouse for one year, he or she might be able to limit or even avoid his or liability if he or she can prove that the other spouse caused the tax problems. An ''innocent spouse'' must not have had any ''actual knowledge'' of the former spouse's tax violations.
Can I get rid of my financial obligations from my divorce in bankruptcy?
Alimony and child support cannot be ''discharged'' (forgiven) in bankruptcy. Furthermore, the United States Bankruptcy Code states that debts that are in the nature of support also cannot be discharged. In many states, courts will look to the intent of the spouses in deciding whether taking responsibility for marital debt is "in the nature of support." The language of your settlement agreement and your intent at the time you entered into the agreement will be deciding factors as to whether you are able to discharge that debt. If it can be proven that you intended payment of the debt to help support your ex-spouse and children, you will most likely still be responsible for paying the debt despite going through bankruptcy.
