Common Misconceptions About Family Law – Generally and Procedurally

Being involved in a family law matter can be one of the most trying times of a person’s life. Whether it is a divorce or a request for custody, a financial matter involving alimony, child support, or the division of a retirement account, the sale of a home or a car, and everything in between, emotions are high. Many people have misconceptions or assumptions about family law that, while they seem to work out on television, are not how judges apply Florida law in real life.

PART 3 of our 3 part series on Misconceptions in Family Law will answer some general and procedural questions you may have about the process. Below are 5 misconceptions about every family law proceeding that may relieve some undue stress while you await a hearing, mediation, or prepare yourself for a family law matter.

1. You do not need to comply with a Standing Temporary Order, or a Standing Order, as it only outlines suggestions for your conduct.

This is false! Many courts enter a Standing Temporary Order, or Standing Order, soon after a case is filed. The Standing Order outlines, generally, that status quo must be maintained throughout the proceeding – that accounts cannot be drained, that children should not be forced to choose sides, that you cannot leave the state with the child, and that mediation is mandatory, among other items.

This Standing Order is a binding order, not merely a list of suggestions, and remains in force until further order of the court.

2. All matters will be addressed and your case will be over at your first Case Management Conference.

In some counties, after a case filing, you are given an auto-generated date for your first Case Management Conference. However, a Case Management Conference is a quick status conference, and generally, your case is not completed at this time. You attend with your attorney, or yourself if you are self-represented, and there are many cases set for a hearing at the same time and in the same courtroom. Once your case is called, you meet with the judge for an update on your case. No testimony is taken. No determinations are made. The judge simply wants to ensure that everything is moving along and will make simple orders relating to discovery deadlines or mediation, if needed.
If, however, you and the opposing party come to a settlement prior to your Case Management Conference, this time in court can be used to finalize your matter.

3. Mediation is not mandatory and instead, you can proceed straight to Court.

Mediation is a process where a neutral, third party mediator – often another lawyer, retired judge, or a trained mediator – is hired to assist in discussing all of the issues and resolving the disputes without the necessity of court intervention.
In all cases, mediation is mandatory. Even if you are filing a post-judgment matter, meaning, you have come to enforce a judgment, or you are requesting temporary support throughout proceedings, mediation is mandatory. Even if you attend the Case Management Conference, described above, and you have not attended mediation, a judge will likely order you to attend.
What is discussed at mediation is confidential, and even if you do not settle, the other party or opposing counsel cannot go tell your judge what you discussed in mediation or what you previously offered as settlement.

4. If a party is pro se, meaning they have not hired an attorney, then your attorney does not need to speak with them and instead, can file things unilaterally in court and schedule hearings without coordination.

Some people choose not to hire attorneys and rather, proceed with the case themselves. However, if you have an attorney, and the other party is self-represented, your attorney will still treat them as an “attorney” for all intents and purposes. This means that your attorney will communicate with them just as they would an attorney. For example, you will not be able to file pleadings or communicate with the judge without also informing the other party, as this would be unethical. At times, this means that your attorney will have to speak with the other party and your attorney would charge for this time just as they would charge for speaking to the other attorney.

5. Administrative Orders, like Standing Temporary Orders, are merely suggestions to follow.

Most clients believe that upon a case being filed, you are quickly in court and the judge will rule on all issues. However, Administrative Orders exist in some counties which outline rules and procedures that attorneys and self-represented parties must follow during the case. A common issue that arises is that procedural deadlines must be followed, and largely, a judge will want to see that you have made a good faith attempt to resolve issues, discovery or otherwise, prior to seeking their assistance in court. Sometimes, a good faith attempt is even required, such as when financial disclosure or discovery is due, but the other party is passed their due date. You cannot simply file a motion to enforce their compliance without an attempt to secure the overdue documents yourself, in good faith.

Are you in need of Family Law services in Tampa, FL? Call today to schedule your consultation.

Common Misconceptions About Paternity

Being involved in a family law matter can be one of the most trying times of a person’s life. Whether it is a divorce or a request for custody, a financial matter involving alimony, child support, or the division of a retirement account, the sale of a home or a car, and everything in between, emotions are high. Many people have misconceptions or assumptions about family law that, while they seem to work out on television, are not how judges apply Florida law in actuality. tampa paternity

PART 2 of our 2 part series on Misconceptions in Family Law is about Paternity or, rather, the circumstances when 2, un-wed people, have a child. Below are 3 misconceptions about paternity that I hope will clear up some questions or clarify some assumptions you may have while being involved in a paternity matter.

 

3 Misconceptions About Paternity

 

  1. If the father’s name is on the birth certificate, he is deemed the child’s father for all legal purposes and is entitled to parenting time and must pay child support.

One of the most common misconceptions is that, in the case of unwed parents, if the father’s name is on a child’s birth certificate, that he has all the same rights and obligations to the child as the mother. This is not the case. In Florida, a signed and notarized affidavit or a court order is required to actually establish paternity, child support, and a parenting plan or timesharing. Unless and until paternity is established, the putative father has no obligation to support the child and has no legal right to have parenting time.’

  1. If you do not pay child support, you do not get to see your child.

Child support is not tied to timesharing, nor is timesharing used as an “award” for paying child support. While child support is a factor to consider in a paternity case, and able-bodied parents should be supporting their children, timesharing is a separate matter. Unless a court finds that timesharing between a child and a parent is dangerous or, otherwise, not in that child’s best interests, a parent is entitled to time with their child, regardless of whether child support is being paid or is current.

  1. If your child is sick, you do not have to send them for parenting time with your ex-partner or spouse.

 False! Often, I am faced with a parent who has refused to exchange the child for timesharing because the child is sick. Unfortunately, the child’s illness does not preclude you from following the parenting plan. You cannot pick and choose when you believe it is appropriate for your child to be with the other parent. The other parent is likely more than capable of taking care of the child if the child is sick, and will be able to bring them to a doctor or provide appropriate medication.

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Common Misconceptions About Divorce and Equitable Distribution

5 Misconceptions About the Divorce and Equitable Distribution Process

equitable distribution photoBeing involved in a family law matter can be one of the most trying times of a person’s life. Whether it is a divorce or a request for custody, a financial matter involving alimony, child support, or the division of a retirement account, the sale of a home or a car, and everything in between, emotions are high. Many people have misconceptions or assumptions about family law that, while they seem to work out on television, are not how judges apply Florida law in actuality.

PART 1 of our 2 part series on Misconceptions in Family Law is about Divorce and Equitable Distribution. Each and every divorce has a unique set of facts, and no 2 can be compared. Below are 5 misconceptions about the divorce and equitable distribution process that I hope will help educate you on the process and manage your expectations in the event you find yourself involved in a dissolution of marriage.

  1. Alimony is a guarantee in a divorce.

Alimony, is never a guarantee, but rather, it is based on a “need and ability to pay” basis. A spouse must have the need for an alimony payment, and the paying spouse must have the ability to pay. The need and ability to pay is determined upon a detailed review of financial resources as well as a variety of factors outlined in the Florida statutes including the standard of living established during the marriage, the duration of the marriage, the contribution of each party to the marriage such as child-rearing, and the earning capacity and skills of each party.

In Florida, there are several types of alimony:

  • Temporary alimony
  • Bridge-the-gap alimony
  • Rehabilitative alimony
  • Durational alimony
  • Permanent alimony

The receipt of alimony is often tied to the length of the marriage.

  1. The Mother automatically gets majority custody of the children after divorce.

While many years ago, this was actually the case, Florida law presumes that each parent should have 50-50 custody of the children. To establish a parenting plan or timesharing (“custody”), the Florida statutes outline 20 factors for a court to consider. These factors include items such as the capacity and disposition of each parent to act upon the needs of the child as opposed to the needs or desires of the parent, the moral fitness of the parents, the capacity and disposition of each parent to provide a consistent routine for the child, and in some cases, the preference of the child. Ultimately, in the eyes of the law, if deemed to be in the best interests of the child, both parents should be entitled to equal time.

  1. If you bought something in your name only, it is yours, and it cannot be split in a divorce.

Names on property do not always equate to rights to property. During a divorce, all marital assets and liabilities are considered to effectuate what is called “equitable distribution.” While an asset such as a bank account or a house may be in only one spouse’s name, if the asset was purchased during the marriage, or if marital funds were used to enhance the asset in any way, it may be considered marital. This does not mean that the spouse who purchased the item or property is not entitled to their non-marital portion of the item, however, simply having their name on the property does not guarantee them full ownership upon the divorce.

  1. Your spouse cheated, so you will “get more” in the divorce as punishment to them.

Florida is a no-fault state. This means that either party can seek a divorce, regardless of the reason. While it takes 2 people to get married, it only takes 1 person to begin the divorce process. In Florida, all that a court will require is the allegation that the marriage is “irretrievably broken.”

  1. An inheritance is not a marital asset.

Often, it is believed that every cent in a marriage, and every dime one spouse receives, is subject to division upon divorce. While, the majority of the time, this is true of marital assets, an inheritance is not always considered a marital asset.

Inherited assets normally remain in the possession of the person who received the inheritance. An exception to this would be in the case where the inherited asset is commingled with marital assets or placed into the name of both parties. If that is the case, it may be subject to equitable distribution unless agreed otherwise.

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