The Law Offices of Ben I. Farbstein, P.A.

Glossary

FAMILY LAW GLOSSARY OF COMMON TERMS AND DEFINITIONS

Definitions are not complete explanations of the law – designed to give a general understanding only. Please see the Florida Statutes for further explanation of the current law and/or consult an attorney.

Divorce

Divorce, also known as Dissolution of Marriage, may be based on the marriage being irretrievably broken. Although Florida is a no-fault divorce jurisdiction, the procedure for a dissolution of marriage depends on whether there are children to the marriage and a variety of other factors. The Court will look into each party’s financial disclosures, assets, and the possibility of support. A dissolution of marriage may result with a Final Judgment from the Court granting the dissolution of marriage, based either on the Court’s findings or an agreement created by the parties through the use of mediation. The effect of the Final Judgement is to distribute assets, determine alimony, and, if children are involved, address parenting and time-sharing issues. The final judgment from the Court can then be enforced to ensure both parties’ compliance.

Alimony

Alimony, may be rehabilitative or permanent in nature and ordered for or against either party. Permanent alimony may be awarded as periodic payments or a lump sum payment, depending on the facts of the case. In determining alimony, the Court will consider factors, including: adultery, the duration of the marriage, the standard of living during the marriage, financial resources of each party, each party’s contribution to the marriage, and the age, physical and emotional condition of each party. If the Court awards alimony, that Order is enforceable by the Court and the parties through a variety of legal vehicles, such as garnishment of wages.

Asset Distribution

Upon a dissolution of marriage in Florida, marital assets are subject to equitable distribution. Equitable distribution means that the Court presumes a 50/50 split between spouses of property acquired during the marriage. The Court, though, will hear arguments against this presumption which may lead to unequal distribution. The property which is considered “marital property” includes not only assets obtained during the marriage but also assets that increased in value during the marriage, such as pensions and stocks. However, certain assets brought to the marriage and acquired during the marriage remain non-marital.

Financial Disclosure

Financial disclosure is required in all Florida divorce cases (and paternity, child support, alimony, etc…) since without financial disclosure, the parties and the court cannot resolve or dispose of financial issues.

Mandatory disclosure is required to be filed within 45 days after service of a petition. The responding party must do the same & discovery (financial affidavit) received from the other side must be no fewer than 2 business days before a hearing.

There are numerous tools available for the financial disclosure to be sought or obtained from the other side. This includes a demand pursuant to Rule 12.287; Florida Family Law Rules of Procedure. The Florida Supreme Court has enacted a complete set of court rules for divorce and family cases which are in addition to the Florida Rules of Civil Procedure.

Other tools include depositions, requests for production of documents, interrogatories, and requests for admissions. Financial information must be complete to fully understand the financial resources of the parties.

Name Changes

A party can request a name change at any time. So long as the name change is not being done to avoid creditors or defraud anyone, the request can be made in a pending divorce case so that the final judgment (divorce or paternity) will include the name sought to be changed. A simple example; requesting a maiden name to be restored. A name change can also be requested as an independent action seeking name change only. There is no adversarial issue or proceeding involved; but proper notice which is required by publication must be proven to the court; so that the world has notice and an opportunity to file a response.

Confidentiality

When it comes to the attorney-client relationship, confidentiality is most important and necessary. Client would not speak with their attorneys if they had to be concerned with the attorney repeating the information. Some attorneys will even protect their clients by not having more than once client in the waiting room at the same time, to avoid one client seeing another. This is not actually required but a good practice and good courtesy for the client.

Cohabitation and Domestic Partnership Agreements

Cohabitation and Domestic Partnership Agreements can include provisions similar to those found in a prenuptial agreement. Many of these agreements cover support and tax-related issues.

Parenting Plans

A parenting plan approved by the court must set forth adequate detail of how parents will share and be responsible for the daily tasks associated with the upbringing of your child; time-sharing schedules and arrangements, the time that the minor child will spend with each parent, who will be responsible for healthcare, school related matters, and all other important issues regarding the child including methods and technology the parents will use to communicate with the child.

Time-Sharing & Parental Responsibility

As of October 1, 2008, the Florida Legislature eliminated the terms “custody” and “visitation” in the Florida Statutes and replaced these terms with “parental responsibility” and “time-sharing.” Although the terms have changed, it is still the public policy of the State of Florida that each minor child should have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule.

The Court will order that the parental responsibility for a minor child be shared by both parents unless the Court finds that shared parental responsibility would be detrimental to the child. In ordering shared parental responsibility, the Court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include: education, health care, and any other responsibilities that the Court finds unique to a particular family. The Court shall order sole parental responsibility for a minor child to one parent, with or without time-sharing with the other parent, if it is in the best interests of the minor child.

Cases involving minor children now require a “parenting plan.” To be approved by the Court, the parenting plan must, at a minimum, describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent; a designation of who will be responsible for any and all forms of healthcare, school-related matters including the address to be used for school-boundary determination and registration, and other activities; and the methods and technologies that the parents will use to communicate with the child.

The Court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, except that modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances.

Paternity

Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court to determine the paternity of the child when paternity has not been established by law or otherwise. Paternity may be established through legitimation, acknowledgment of paternity, administrative order or court order. In any proceeding to establish paternity, the Court may require the child, mother, and alleged father(s) to submit to scientific tests to show a probability of paternity. Once paternity is established, the child is entitled to child support, and the father receives all the rights and responsibilities of childrearing.

Child Support

Child support is based on the needs of the child(ren) and the parents’ ability to pay the support. The Court may, at any time, order either or both parents who owe a duty of support to a child to pay support to the other parent or, in the case of both parents, to the person with custody in accordance with the child support guidelines. The amount of child support may vary by five percent (5%) above or below the guideline amount. The Court may vary the amount of child support only after considering all relevant factors, including the needs of the child and the ability of each parent to pay child support. Child support is a right of the child. The Court will modify child support only if there is a substantial change in circumstances. If a parent fails to pay the ordered child support, the other parent may enforce the order of support, which may result in a contempt proceeding against the parent who failed to pay.

Parenting Coordination

The court will appoint a parenting coordinator, when appropriate, to assist the parties (parents) and/or the court in creating or implementing a parenting plan by facilitating the resolution of disputes between the parents by providing education, making recommendations, and with the prior approval of the parents and the court, making limited decisions within the scope of the court’s order of referral. See FS 61.125.

Relocation

“Relocation” means a change in the location of the principal residence of a parent. For the Court to consider a move as “relocation,” the change of location must be at least fifty (50) miles from that residence, and for at least sixty (60) consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of healthcare for the child. The parties may either agree in writing to the relocation or may petition the Court. In determining whether to grant a relocation petition, the Court will consider factors such as: the effect the relocation will have on the relationship between the child and each parent, the age and needs of the child, and the current employment and economic circumstances of each party.

Domestic Violence

Florida Statutes Section 741 provides protection from “imminent danger“. In plain English, if someone has threatened, harassed, stalked, or physically abused you, the court will restrain (stop) the other party (respondent) from committing any further acts of domestic violence. This statute requires the parties are either spouses, ex-spouses, relatives by blood, or lives or has lived together, or are parents of a child in common. Basic procedure is the filing of a petition without the other party knowing or responding. The court will review the sworn (notarized) petition and enter a temporary order; and set a hearing (return hearing) within 15 days to allow the other party to be heard (appear in court and tell their side of what happened).

Enforcement & Contempt

All final orders of dissolution of marriage can be enforced. If an order regarding child support, parental time-sharing and responsibility, or alimony is not complied with, the order may be enforced against the violator in a variety of ways, including commencing contempt proceedings. Contempt of court charges may result in incarceration or a fine. Less harsh forms of enforcement include garnishment of wages, suspension of professional licenses, and levies against bank accounts and other assets.

Attorney’s Fees/Costs

Attorneys fees are paid by the client. They can also be awarded by the court to be paid by the other party if there is a specific provision for attorneys fees to be paid or Florida Statute provides for an award. The Florida Supreme Court landmark case of Canakaris sets forth the objective of an award for attorneys fees in family law cases. The courts stated that the purpose of Section 61.16 Florida Statutes is to make certain that both parties “will have similar ability to secure competent legal counsel”.

Costs: Costs are kept separate and may also be awarded by the court. Costs include; i.e.: photo copies, messenger, service of process of subpoenas or petitions, deposition expenses for court reporters, transcripts, etc. These expenses are commonly addressed in the attorney retainer agreement.

Retainer Agreement: In Florida, a retainer agreement is required to be signed by the client as the first step to the attorney-client relationship. The retainer agreement is important both for the Hollywood divorce attorney and the client, to understand the terms of the relationship and agreement between attorney and client.

Unfit Parent

In determining that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined by chapter 39.

Home State

Home state defined: the state in which the child lived with a parent or person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.

*Definitions of legal services based on Florida Statutes, 2009 and are not complete explanations of the law. These definitions are designed to give a general understanding of the family law issues that the Law Offices of Ben I. Farbstein, P.A. handles. Please see the Resources page for a link to the Florida Statutes for further explanation of the current law.