Divorce Attorney Scott J. Stadler

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divorce

The trial court will follow the acronym of P.E.A.C.E. as a roadmap to resolve the case. I will discuss below the following areas:
  • Parental Responsibility

    The “P” in the acronym P.E.A.C.E. stands for Parental Responsibility. Family court judges are learning how to deal with persons in emotional crisis, and also the normal reactions of children during their parents’ divorce. Children thrive with a plan, which is now required by Florida law, that helps children adjustment to the divorce, by addressing their psychological and development needs, considering the children’s age, temperament, attachments, physical maturity, cognitive abilities, social relationships, and emotional development.

    A parent may tell the lawyer concerns about the children during the divorce process. A parent may state that the child’s problems are being cause by the other spouse. Parents should obtain knowledge of child development and normal reactions of children during their parents’ divorce. Reviewing a chart of the normal reactions of children during their parents’ divorce and discussing and evaluating what is happening with the child compared to the chart reactions may be helpful to guide parents in determining what is really best for the children under the circumstances.

    A common example is where a spouse states that a three year old child should not have overnights with the other spouse as the child has started bed wetting since sleeping at the other parent’s house. The chart and materials in this area will advise the parents that regressive behaviors are normal reactions of a child of that age during the divorce. A parent’s idea to stop overnight timesharing with the other parent may actually be harmful to the child’s growth and development. The court will likely be concerned about the parent’s knowledge, and lack of knowledge, of early child development of children of divorcing parents.

    Florida law presumes that both parents are fit to be parents. It is presumed that a fit parent will have certain basic knowledge that it is important for a child to have two healthy parents involved in the child’s life that discuss the upbringing of the child and make decisions together.

    If a parent believes that the other parent is not fit, then it is the responsibility of that parent ton intervene long before the legal process of divorce begins. There are many resources available to teach parents how to be parents. If you fail to intervene early in parenthood you are not protecting your child and it is you who may be seen as the unfit parent for not taking steps to educate your spouse on how to be a parent. In other words, the court may find that the “fit” parent failed to protect the child.

    Many times parents think the “better” parent is to be the primary residential parent. As of October 1, 2008 under the Shared Parental Responsibility Act there is no longer a primary residential parent and a secondary residential parent. All legal titles have been eliminated because people incorrectly attached higher rights to the child if you were the primary residential parent, and less rights to the secondary residential parent.

    The “better” parent is the one who acts in the best interests of the minor child. What is expected is not bashing of the “unfit” parent, but attempts at rehabilitation and intervention of the other parent to benefit the children.

    Under Florida Statute 61.13 Florida law now requires a plan to govern the relationship between the parents to make decisions about their children and to develop a schedule of time when the children will spend time with each parent. This is called a parenting plan. The statute is gender neutral as there is no presumption for or against a man or woman when determining a time-sharing schedule.

    Parental Responsibility is a Florida law that presumes the responsibility for the children should be “shared” between the parents. This means that both parents have the right to be involved in major decisions about the children’s health, education and upbringing and to decide them together. Sometimes parents are unable to discuss major decisions about the children with the other spouse and ask for what is known as “sole” parental responsibility for the children. To achieve this result you will have to prove that sharing parental responsibilities, or discussing major decisions affecting the children, is somehow detrimental to the children.

  • Equitable Distribution of Assets and Debts

    The “E” in the acronym P.E.A.C.E. stands for Equitable Distribution of Assets and Debts. Under Florida Statute 61.075 an equitable distribution of marital assets and debts starts with the presumption that it should be equal, unless there is justification for an unequal distribution. Florida views marriage as a partnership. Both parties’ contributions to the marriage, and participation in the marriage, are factors for the court to consider. The court must follow the statutory factors in determining a distribution of assets and debts.

    The statutory criteria are as follows:

    • The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
    • The economic circumstances of the parties.
    • The duration of the marriage.
    • Any interruption of personal careers or educational opportunities of either party.
    • The contribution of one spouse to the personal career or educational opportunity of the other spouse.
    • The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
    • The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the non-marital assets of the parties.
    • The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
    • The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
    • Any other factors necessary to do equity and justice between the parties.
  • Alimony

    The “A” in the acronym P.E.A.C.E. stands for Alimony. Alimony awards are governed by Florida statute 61.08. Significant statutory changes affecting alimony became law on July 1, 2010. The statutes and case law governing alimony have extensive requirements of findings of fact. The statutory factors must be addressed whether the court grants or denies an alimony claim.

    In determining alimony, the court considers all relevant economic factors, such as the parties’ prior standard of living, length of the marriage, age and physical and emotional condition of both spouses, each spouse’s financial resources and income-producing capacity of the assets they receive, the time necessary to acquire sufficient education or training to find appropriate employment, the services rendered in homemaking, child rearing, and education, and career building of the other spouse. The court may consider any other factor necessary to do equity and justice between husband and wife. In this regard, you have the right to find out about all your spouse’s income and assets through the use of several discovery tools.

    The court may grant alimony to either party. The types of alimony the court can award are bridge-the-gap, rehabilitative, durational or permanent alimony. The court can also award any combination of these types of alimony.

    After the court divides the assets and debts, the court addresses alimony. The primary factors for awarding alimony are first determining whether a person has the need for alimony, and second, determining whether the other party has the ability to pay alimony. If the court finds that a party has a need for alimony, and the other person does in fact have the ability to pay alimony, then the court will determine the proper type of alimony to award, and the amount of money to award.

    Effective July 1, 2010 under Florida Statute 61.08 for the purpose of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than seven (7) years. A moderate-term marriage is a marriage having a duration of greater than seven (7) years but less than seventeen (17) years. A long term marriage is a marriage having a duration of 17 years or greater. The length of the marriage is determined from the date of the marriage until the date of filing of a petition for dissolution of marriage.

    Arguably, a period of separation before filing a petition for divorce may affect how a court calculates the length of a marriage. This can occur when parties have been separated for a substantial period of time. For example, If the parties were married and lived together as husband and wife, then separated for 8 years before filing for divorce, a court would be hard pressed to determine that the “marriage” was for 10 years.

  • Child Support

    The “C” in the acronym P.E.A.C.E. stands for Child Support. Both parents contribute to the children’s support. The amount that each parent pays for the children’s support is based on a mathematical formula under Florida Statute 61.30. The primary factors in determining child support are the net incomes of each parent, and the number of overnights that each parent has with the children per year. There are other factors in the mathematical equation. The results of the mathematical formula are the child support guidelines.

    The court may order that payment of non-covered medical, dental and prescription medication expenses of the minor child be made directly to the parent who receives child support.

    Child support is a right belonging to the child. Parents cannot contract their child’s right to support. Parents cannot agree to the amount of child support to pay. The trial court has the ultimate discretion to determine the amount of child support each parent will pay. Neither spouse may waive the right of the child to receive child support.

    Each child support order must contain a provision for the child’s health insurance when the cost is reasonable and the insurance is accessible to the child. Health insurance is presumed reasonable if it does not exceed five percent of gross income of the parent responsible for providing health insurance. Health insurance is accessible if it can be used in the county of the child’s residence.

    Child support is typically paid to a parent of the child. Effective October 1, 2010 child support can be paid to a third party caregiver for the child.

    Florida Statute 61.13 now requires that all child support court orders must provide for child support to terminate of the child’s 18th birthday. Child support can be extended after the child’s 18th birthday under the following circumstances:

    • Pursuant to section 743.07(2) the child is dependent because of a mental or physical incapacity that occurred before the child reached age 18.
    • If the child is still in high school performing good faith with a reasonable expectation of graduating before the age of 19.
    • The parties agree to a later date for the payment of child support after the child turns 18.

    Effective January 1, 2011 the Florida legislature enacted a new statute 61.29. It sets forth the following principles that establish the public policy of the State of Florida in the creation of the child support guidelines:

    • Each parent has a fundamental obligation to support his or her minor or dependent child.
    • The guidelines schedule is based on the parents’ combined net income estimated to have been allocated to the child as if the parents and children were living in the same household.
    • The guidelines encourage fair and efficient settlement of support issues between parents and minimize the need for litigation.

    Child support is not a requirement imposed by one parent on the other parent. It is a dual obligation imposed upon both parents by the State of Florida. The reason is that it is the child’s right to receive financial support from his or her parents.

  • Everything Else

    The “E” in P.E.A.C.E. stands for Everything Else. This is a generic category that includes anything that is not related to parental responsibility, equitable division of assets and debts, alimony or child support.

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