Theodore H. Enfield – Miami Family Lawyer
Family Law Advisor
From annulment to legal separation to marital dissolution, spouses have options for ending relationships. If you think a separation or a divorce is in your future, there are several things you can do in Fort Lauderdale,Florida to protect your financial interests and your family relationships.
EQUITABLE DISTRIBUTION OF MARITAL ASSETS AND LIABILITIES
When dividing property, if there is no prenuptial agreement telling how marital assets and liabilities should be separated, Florida courts will consider the contributions that each party made to the marriage. Those contributions include support of your spouse’s career or education, care for children, homemaking, and any interruption of career or educational opportunities.
When a long-term marriage ends in divorce, Florida courts may grant alimony to either party if there is an economic need. The parties can also agree to an unequal division of marital property instead of alimony.
CHILD CUSTODY AND SUPPORT
Child support and child custody issues can arise whether the parents are married or not. In Florida, all children have a right to receive support from both parents. Theodore H. Enfield P.A. family attorney in Miami, Florida , works with parents to establish paternity, adoption for stepparents, and child support and custody orders.
CHILD CUSTODY AND SUPPORT MODIFICATIONS
The Florida family law court that presided over your original child custody and child support order has the power to enforce that order and to make post-decree modifications. If you have a child support or child custody issue, you will need the court’s help to resolve it.
One of the most difficult child custody issues that can arise after divorce is relocation. It is hard to find a win-win solution when one parent wants to move a child to another state or even another country. In a dispute over a proposed relocation, it seems inevitable that one of the parents will win and the other will lose.
If your spouse or partner is threatening you or has become physically abusive, Florida’s domestic violence laws can give you a great deal of power. By filing an injunction, you can have your spouse removed from your home and barred from contacting you. However, a spouse who wants to get the upper hand in a divorce case can also misuse accusations of domestic violence.
GENERAL INFORMATION REGARDING FAMILY LAW, DIVORCE LAW FORMS, COMMENTARY, AND INSTRUCTIONS
This information is for men and women who choose to represent themselves in court or for men and women who want to better understand family court. It is advised that they read the General Information regarding the Family Law Forms, Commentary, and Instructions before taking any further action. The information that is described should not be considered as a substitute for the legal advice from an attorney because every case is different and every situation is different also.
Ex parte communication is communication with a judge when only one party is present. Judges are not allowed to have ex parte communication with one party unless in very specific circumstances or if the other party was notified prior. If someone needs to speak with a judge then that party would need to ask for a hearing with a written notice to the other party and a written statement to the court file.
A case begins with filing a petition, which is a written request to the court for a new legal action. The person who originally asks for the petition is the petitioner and remains the petitioner through out the case. The petition is given to the clerk of circuit court, whose office is usually located in the county courthouse. There, a case number will be assigned and an official court file will be opened. A filing fee is usually required when one files a case with the clerk of courts.
Once a case has been filed, a copy must be served or given to the respondent. The term respondent refers to the person or party who is against the legal action originally requested by the petitioner. The respondent is expected to respond to the case once he or she is served.
When one party files a petition, motion, or pleading, the other party must be given a copy of the documents. This is referred to as service and being served. This gives the respondent notice of pending actions or hearings, and allows the respondent to prepare and possibly hire an attorney. Personal service of a petition and summons on the respondent by a sheriff or a private process server is required for original petitions, and supplemental petitions unless constructive service is allowed by law. Personal service may also be required for other actions if a judge seems that it is fit. After the initial service of a petition, supplemental petitions and summons can be made by U.S Mail or by hand delivery. Service by certified mail is required at other times so that it can be ensured that the other party received the documents. If the party has an attorney, one can serve the attorney and send a copy of the petition to the party for anything other than the initial petition, which as mentioned before must be served to the respondent personally. Anytime other than the initial petition, if a party chooses to file additional pleadings and motions, the other party must receive a copy with a certificate of service. Forms of service of process are included in the Florida Family Law Forms with detailed explanations. If the proper service is not obtained, the then court cannot hear your case so it is very important that if you are making service it is performed correctly.
If one does not know where the other party in the case lives or if the other party resides in a different state, then constructive service can be used for service. The grant may only grant limited relief with constructive service, unless it is a divorce case. If a party is currently in the military service, additional steps for service may be used. If a party is served with a petition or counterpetition, then that party has 20 days to answer or to file a response. If the party does not respond to the petition that is filed, then the petitioner can file for a Motion for Default with the clerk. This means that the petitioner can continue with the case even if the respondent does not cooperate. A final hearing with a judge can be scheduled even if the respondent does not cooperate.
Within the 20 days after being served, the respondent can file an answer admitting or denying the allegations in the petition, or can answer with a counterpetition. In the counterpetition, the respondent is able to request the same action or a different action. If the respondent answers with a counterpetition, then the original petitioner can respond with a Answer to Counterpetition.
In regards to a dissolution of a marriage, there are certain documents such as a financial affidavit that needs to be exchanged to each party. If there is a failure for either party to produce these documents, then the case may be dismissed or the court will not hear the pleadings of the party that did not produce the documents. This requirement must be met for other family law matters as well.
If a case involves minor or dependent children, the court has the ability to establish a Parenting Plan, including a time-sharing schedule, the child’s health care, physical health, mental health, social health, education, and emotional well-being. The Parenting Plan needs to be agreed upon by the parents and by the court. If the parents cannot come to an agreement, the court will establish the Parenting Plan.
In most cases, courts will have hearings on motions, final hearings on uncontested or default cases, and trials on contested hearings. Before a case can be set for a final hearing, certain requirements must be completed. The court can consider your request for hearing and trial dates, and then one should attend on those dates. You may be asked to bring certain forms with you.
In the case of Trang Ngoan Le v. Tung Phuong Nguyen, a dissolution of marriage and child custody case, the trial court erred in not considering the best interests of the dependent children involved when creating the parenting plan for the parities’ marital settlement agreement. The wife tried to set a parenting plan before it was put into the final judgment, but the court required the former wife to prove that she had experienced a substantial change in circumstances, a very burdensome process. The final judgment was reversed and another hearing would take place to resolve the issue of the parenting plan and the child support.
In the dissolution of marriage case of Elizabeth Booth v. Rainey C. Booth, the trial court abused its discretion in regards to vacating an order denying attorney’s fees. The predecessor judge entered an order denying non-party attorney’s fees on the basis that there was a failure to prove any unreasonableness. The records did not find that the successor judge could vacate a final order of his predecessor, where there was no substantial evidence or circumstances to do so.
In a case dealing with dependent children, G.U., the mother v. The Department of Children and Families, The Department of Children and Families had filed a petition for the adjunction of dependency because the father of the children had sexually abused them. However the mother claimed that the father was not abusing the children and that she wanted him to live in the family home again; psychologist found that the children experienced emotional harm because the mother refused to believe the children. The mother did not want to participate in family therapy although the children needed it, and would not go until the court ordered it. Furthermore, there was a strong likelihood that the mother would allow the father to visit the family home which could put the children in emotional and physical danger. The court affirmed the order of adjunction of dependency.
The dissolution of marriage and rehabilitative alimony case of Phyllis Walker v. Daniel Walker, was given a reversed order so that the circuit court could consider a petition to alter an alimony award based on merit. The circuit court had jurisdiction over a petition seeking to change rehabilitative alimony to permanent alimony while increasing the amount of the award. There was an error to dismiss the petition for a lack of subject matter jurisdiction.
In the dissolution of marriage case of Sandra Goldstein v. Raymond Goldstein, the trial court abused its discretion when it denied the former wife’s request for attorney’s fees and the court failed to make the findings to the wife’s need and the husband’s ability to pay. There was evidence in the records of the wife’s need and the husband’s greater ability to pay at least a part of the wife’s costs. The court also erred in attributing the entire amount of CD to the former wife, even though the CD was a former marital asset. The CD was supposedly depleted to pay for the wife’s living expenses, however the court did not find that the depletion was caused by the wife’s misconduct.
In the dissolution of marriage case of Bernadette Doyle v. Patrick Joseph Doyle, the former husband filed a motion to vacate dismissal of the wife’s dissolution action, but the wife claimed to have never received the motion and did not attend the trial. The husband had an answer for affirmative relief that was sufficient to overcome the broad right to voluntary dismissal however it was an error to conduct the trial on the same date as the hearing without the wife’s presence because at best she could have had a notice of only four days. The trial court should have rescheduled the trail for the claims for each party and rendered its order vacating dismissal with notice to the former wife.
Rebecca Henderson v. Stephen G. Lyons and Kathy M. Leggett is a case involving a dissolution of marriage and parenting coordinator fees. The trial court abused its discretion when it entered a written order granting parenting coordinator’s motion for fees. The motion requested that the wife pay a large amount of the fees, but the wife did not have the financial ability to pay the fees. The trial court had ended before the wife’s attorney could cross-examine the parent coordinator and before the wife could present her own evidence to the court. The court failed to give the wife the appropriate opportunity to present her case and perform due process for all parties involved.
FREE CONSULTATION WITH A FLORIDA LAWYER
For a free consultation by telephone, call Theodore Enfield at 305-933-9592 or 800-733-5299; or fill out the contact form on this website to get in touch with our Family lawyer