Florida Family Lawyer Blog

It’s been six months since you have seen your husband. You want to file for divorce, but you have no idea where he is. What options are available to you when Florida law requires that you serve your husband with divorce papers, even if you can’t find him? The answer is simple: constructive service of process. In Florida, after making diligent and reasonable inquiry into the whereabouts of your husband and you still cannot locate him to serve him in person, you may “constructively” put your husband on notice of the pending suit by following the steps below, so your dissolution may proceed.

If you find yourself in the situation hypothesized above, the first step to take is to make a reasonable search entailing some of the search procedures outlined in this Affidavit of Diligent Search and Inquiry. Next, file an Affidavit of Diligent Search and Inquiry along with your Notice of Action for Dissolution of Marriage. The affidavit, which includes a checklist of places you can look to gather information to locate your husband, ensures that you have made a serious effort to find your husband’s location. Both the affidavit and Notice of Action for Dissolution should be filed in the circuit court in the county where your petition for dissolution of marriage is filed. So, if you petitioned for divorce in Fort Lauderdale, Florida, you would file your affidavit and notice with the circuit court in Broward County. If the court grants you publication of process, the next step would be to publish notice of the dissolution proceeding once a week, for four (4) consecutive weeks, in a newspaper that is published within the county – here it would be a Broward County newspaper such as the Fort Lauderdale Sun Sentinel. After completing this process, the dissolution may proceed, with or without your husband. However, once the divorce is resolved, other problems may rise when you cannot find the father, such as notifying him of your intent to relocating your child more than 50 miles away from your current address.

Assuming your husband never showed up to the divorce proceeding and the court finds it is in the best interest of the child to do so, you would most likely be awarded full residential custody of your child. If that award granted no visitation rights to the father, your husband, then you would also most likely be able to move more than 50 miles away without telling him because he was not granted visitation rights to begin with.

However, in a different scenario where the father was involved in the divorce and was granted visitation rights with the child, and you decide to move from Fort Lauderdale, Florida to Tampa, Florida, which is more than 50 miles away, you would have to serve your husband with notice of your intent to relocate.

Recently, a visitor to our blog posted a question as to what process should she follow if after the father was initially granted visitation but since that time has taken off and the wife is unable to locate the father. In Florida, there is no specific statute determining what proper notice consists of when dealing with service of a notice to relocate upon the father who can’t be found, but it may be in your best interest to rely on what is the accepted practice for constructive service (service by publication) in family law, like in a petition for dissolution of marriage (see the example mentioned in the previous paragraph). This problem may be avoided if the visitation agreement contains a provision including an address for both the mother and the father, which serves as the official address to provide notice to the other party. By stipulating in advance what is the proper address to provide notice, this problem is solved before it even starts.

If you wish to relocate more than 50 miles away from your current address and your husband does have visitation rights, but you have not seen or been able to locate him after diligent search and inquiry, your best bet would be to consult an attorney to consider your options for possible constructive service.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Custody , Divorce , Relocation of Child After Divorce

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If you are getting divorced in the state of Florida, the courts follow a rigid guideline in the equitable distribution of all marital property. What does that really mean? Simply put, all assets and liabilities determined to be “marital,” or shared between both husband and wife while married, are assessed and then distributed evenly to both parties after the dissolution proceeding. But this begs the question: What about my non-marital assets, or assets that will not be factored into the court’s equitable distribution analysis? Because Florida distinguishes between marital and non-marital assets, if a wife believes that some piece of property she acquired before marriage should not be considered in the distribution of marital property, it is her obligation to show the court why that asset is a non-marital.

Florida courts generally presume that all assets and liabilities incurred after the exact date you get married are marital for purposes of equitable distribution in a dissolution of marriage proceeding. However, if you are a spouse with the premarital property and feel your husband is not entitled to share in that asset, look to the example mentioned above, you can defeat this presumption by a showing of why the assets and liabilities are non-marital. Because the division of assets and liabilities is one of the major concerns when couples are going through a divorce, it is a great idea to draft a list of all assets and liabilities and label them either marital or non-marital before the dissolution proceeding begins – this could save you a lot of time later on. To help you and the courts decided categorization, the Florida Legislature has enacted a statute that creates a list of assets and liabilities that are considered marital or non-marital.

Martial assets and liabilities include: (1) assets and liabilities incurred during marriage, either individually or both spouses; (2) increased value and appreciation of non-martial assets due to the efforts of either party during the marriage or because marital funds contributed to that increased value; (3) gifts one spouse gives to the other during that marriage; and (4) all vested and non-vested benefits, rights, and funds that came due during the marriage (including retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans). It is also presumed that all real and personal property held as tenants by the entirety is marital, regardless of whether the property was purchased before or during marriage.

Nonmarital assets and liabilities include the following: (1) assets and liabilities incurred before you got married; (2) assets acquired individually by either spouse by non-interspousal gift, bequest, devise, or descent, or any exchange for these assets; (3) all income received from non-marital assets during the marriage unless that income was used or relied on by the spouses as a marital asset; (4) assets excluded based on a valid written agreement made by the parties (think: pre-nuptial agreement!); and (5) liabilities incurred by one spouse as a result of the other’s forgery or unauthorized signature of that spouse’s name.

In Florida, all assets obtained during marriage will be considered marital until the date the parties enter into a valid separation agreement (that may include a different date to consider) or the date a petition for dissolution of marriage is filed with the court. If you are in the beginning stages of a divorce, consult with an attorney to know what your rights are in regards to your marital and non-marital property.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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In today’s society, it is becoming increasingly common for unmarried couples to have an unexpected child that either the mother or father, or both, decide to put up for adoption thus relinquishing their parental rights. But consider the situation where a couple may have been together 7 months before, broke up, and the ex-boyfriend found out directly from his ex-girlfriend that she is pregnant and due in two months. The mother decides to relinquish her parental rights to her own mother and father and wants to file a petition to that effect. Does the father, although unmarried to the mother, have any rights he may assert to contest such an action? In Florida, an unmarried biological father has the opportunity to assert his claim of paternity by filing the Florida Putative Father Registry Claim of Paternity form. Here is where you can find a sample form to fill out.

In Florida, an unmarried biological father has a right to assert his claim of paternity and obtain notice of a mother’s relinquishing of parental rights. But, to preserve these rights, the putative father must follow proper Florida procedure. In order for the putative father to preserve his right to notice and consent to an adoption, he must file a notarized claim of paternity form with the Florida Putative Father Registry which is kept by the Office of Vital Statistics of the Department of Health. When a putative father submits his paternity form to the Office of Vital Statistics, he consents to testing of his DNA as proof of being the father.

Timing of the biological father’s submission is also very important. To receive proper notice and reserve his ability to consent to the mother’s choices, the claim can be filed at any time before the birth, but may not be filed after the date the mother files a petition for termination of parental rights. For example, if three days after the birth, the mother decides to relinquish her parental rights, and the biological father has failed to submit a notarized claim of paternity, he has essentially waived his parental rights to be notified and provide consent to the mother’s decision. In Florida, the putative father should also realize that the interests of the state, the mother, the child, and the presumable adoptive parents outweigh his interests if he fails to take timely action to establish his relationship with the child.

If you are an unmarried man expecting a child with your significant other, consult an attorney to guarantee that your rights are properly safeguarded.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Establishing Paternity

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The awarding of child custody is of prime concern to parents going through divorce. In Florida, the custody of your child is determined by seven simple words: “best interest and welfare of the child.” While it is the parents who initiated the divorce, from the court’s point of view, it is often the rights of the child that dictates child custody determinations. What if you are the parent who is better suited to support the child financially? Does this give you an advantage in obtaining residential custody of the child or children? In Florida, the fact a child would be more financially secure with one parent as opposed to the other parent is not a controlling factor in determining custody rights.

It’s not hard to consider a situation where spouses are going through divorce, they have children, but one parent makes substantially more money than the other. Take, for example a situation where the father is an executive of a corporation with an annual salary in excess of $250,000.00, and the mother is a homemaker who works really hard but does not earn her own income. In an economically driven society, some tend to think that the more money you make, the better you will be able to provide for the best interests and welfare of your children.

The truth is, even though one parent may bring home more money than the other, in most cases, both parents are still able to provide for a child’s reasonable needs. And although money is important in raising a child, especially in recent years, the courts also look to a parent’s ability to provide for a child’s personal, emotional, and social welfare as well as providing for a child’s material welfare.

If you are a parent going through a divorce, but know you make less money than your spouse, there are other important factors to consider in the issue of determining custody. Rather than spending time worrying about your financial situation, spend time detailing the factors the court will consider, such as: (1) character and moral conduct; (2) mental health; (3) the proposed home environment for the child; (4) character of others living in the proposed home of the child; (5) ability to maintain continuity in the child’s home; (6) parent’s work schedule; (7) and the effects, if any, that an interracial marriage may have on the child. And while no single factor alone is indicative of how the court will rule, it’s important to look at all of them and plan accordingly. Together, these factors comprise the analysis by which a court will determine what is in the best interest of the child when deciding the issue of residential custody.

In such cases where there is a significant disparity of income between one parent and the other the court will often mitigate that difference with awards of child support and alimony.

If you need help discussing the custody issues in your divorce, consult an attorney.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Custody , Divorce

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When Florida residents think about alimony, the most common type that comes to mind is what is termed “permanent alimony.” Permanent alimony, however, is fundamentally different and does not serve the same purpose as “rehabilitative alimony,” which allows a spouse to regain financial independence after divorce. In fact, the court may even grant a combination of both types

Consider this: ten years ago, you graduated from University of Miami, top of your class, and you were well on your way to earning your degree to become a nurse anesthetist. But, before you could finish, you got married and made the decision to put your education and career path on hold to raise a family. You wouldn’t change that decision for the world, but now, it’s ten years later, your marriage has ended, and you have no way to support yourself, having relied on your spouse for generating all of the family’s income. Ignoring your “limitations,” you take control by going back to finish school and enter the work force. In Florida, the court may grant rehabilitative alimony for a limited period of time to assist you in regaining yours status as a self-supporter.

Rehabilitative alimony forces one spouse to pay for the other to obtain a skill, education, or rehabilitation so that he or she can eventually support his or her self – an ability they lost or never had before or during the marriage. If you seek rehabilitative alimony, it is important that during the dissolution proceeding you present detailed evidence demonstrating the cost of completing your education, your prospects of future employment, and the amount of time you will need to obtain the income you need. This “plan,” must be credible and adequate, so it is important to make it as accurate as possible.

In Florida, there is an important limitation on rehabilitative alimony – it does not act as a substitute for unemployment compensation or retirement benefits, but lasts only until the receiving spouse can be sufficiently trained for employment and no longer relies on the other spouse’s funds for support. Take the opening hypothetical, for example. You have presented to the court, during your divorce proceeding, a plan that includes going back to college for two years to earn your nursing degree including an additional year to find the right job that will be well-compensated. Taken together, the court may award rehabilitative alimony for up to 3 years from your ex-spouse.

To discuss the need for rehabilitative alimony during your dissolution proceeding, or to create an adequate rehabilitative alimony plan to present to the court, please consult an attorney.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Alimony , Divorce

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In Florida, the equitable distribution statute mandates that a court must equitably distribute the marital property of parties to a divorce action. This generally means that each party will get half of the marital assets regardless of fault. Furthermore, the parties to this action do not have to specifically plead or request equitable distribution of all marital assets, it is presumed. Therefore, a trial court is required to divide marital assets and liabilities equally between spouses, unless the court makes a finding which supports an unequal distribution. While an equitable distribution presumption is the court’s starting point, Florida provides a list of factors that must be considered to determine if an unequal distribution of property is justified. Interestingly enough, the statute does not list marital fault as a factor to be considered in effecting an equitable distribution.

The factors a Florida court looks at to determine whether marital assets should be equitably distributed include: (1) how much of a contribution each spouse makes to the marriage (which includes care and education of the couple’s kids or work as a homemaker); (2) each party’s economic position; (3) how long the marriage has lasted; (4) whether the educational goals of either spouse has been interrupted; (5) whether one spouse has personally contributed to the other spouse’s career or educational goals; (6) whether one spouse wants to keep assets in their same form without any interference; (7) each spouse’s contribution to acquiring, enhancing, and production of income, as well as the improvement of both the marital and nonmarital assets (8) whether one spouse wants to keep the marital home as a residence for any dependent children; (9) whether either party intentionally dissipated, wasted, depleted, or destroyed marital assets after filing for divorce or two years before filing for divorce; and (10) all other factors needed by the court to determine a fair and equitable distribution.

Martial fault, although unlisted within the Florida statute, may play a part in the distribution of your marital assets. It is not listed within the statute because distribution based on one spouse’s “fault” would essentially reward the innocent spouse and punish the offending spouse. According to the Florida Supreme Court, the purposes of equitable distribution is not to punish a philandering spouse overturning a trial court’s award of 97% of the marital assets to a wife whose husband committed adultery. However, showing evidence that one spouse has cheated on the other is relevant when it demonstrates that the adulterer has depleted marital resources. For example, one spouse using the couple’s marital funds to further his or her adulterous behavior can be used against them in a court’s determination of equitable distribution. A trial court can even assign the depleted funds to the adulterous spouse as part of that spouse’s equitable distribution. See Romano v. Romano, 632 So.2d 207 (Fla. 4th DCA 1994). A spouse who wishes to assert this ground must demonstrate the causal connection between the other spouse’s adulterous misconduct and the couple’s financial circumstances. This may prove to be an advantageous loophole for some!

For more information about Florida’s equitable distribution of marital assets, please consult an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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