This is an extremely complicated question these days.  Most people, even wealthy people, are “upsidedown” on their mortgage–meaning that because the housing  market crashed, they owe more on their house than what it’s worth.  However, during a divorce it’s not infrequent for one of the parties to want to keep the house for a variety of reasons:  sentimental value, to keep the children in the house they grew up in and keep them from changing school zones, and perhaps the mortgage is cheaper than it would be to rent an apartment of a comporable size.  The problem is that the spouse that’s leaving the house doesn’t want his/her name left on the mortgage (specifically, the note) because he/she is still financially liable if the party who remains in the house stops making the payments and he/she would also have a difficult time obtaining other loans while still being listed on the mortgage.  Many people think it’s as simple as one party signing over a Quit Claim Deed to the other party to get someones name off the mortgage, but the deed just affects the ownership.  No one ever wants to relinquish ownership in property while they’re still financially responsible.

There are really only two ways to get someone’s name off the mortgage and the note:  to sell the house, or for the party remaining in the house to refinance it into his/her own name, thus removing the opposing party’s name.  Refinancing is difficult, however, and essentially impossible unless there is a significant amount of equity in the house.

People can also work with lenders and seek loan modification programs, but from my experience, those haven’t been too successful.  And, of course, it’s important to do the best you can to keep your credit as good as possible, which is very difficult in times like these.

Unfortunately, many people have to sell the house because they owe more on the mortgage than what the house is worth.  In this scenario, the best option is a short sale.  If foreclosure is imminent, many people stop making the mortgage payment because they feel as though they’re wasting money if the house is going to be foreclosed on.  I recommend people in these situations to talk to a real estate attorney.

There are times that even after a foreclosure and short sale the lender may sue the lien holders.  If this were to be the case (and I should mention this is quite rare), it would be in civil court but the family law judge would more than likely order that each party be equally responsible for any deficit.

Before you hire a Tampa divorce attorney, make sure he/she has experience in handling real estate issues and can advise you the best way to separate all liabilities with your ex-spouse while preserving your credit as much as possible.

In a divorce case, many people are under the misconception that if one party lives in Florida for at least six months that he/she can get divorced in Florida. While there is a six month residency requirement to become divorced in Florida, that only allows Florida to have subject matter jurisdiction of the case.  Florida also needs to have personal jurisdiction of both parties, which means that the opposing party must have some contact with the state of Florida.  While a party may still get a divorce in Florida, the Florida court does not have jurisdiction to equitably divide property or order child support without personal jurisdiction.  Jurisdiction is a very complicated issue and you should consult an experienced family law attorney for more information.

I’ve met with several people who have relocated to Florida and lived in Florida for six months just so they can get divorced in Florida, and they are always disappointed to find out that Florida lacks personal jurisdiction over the other party and therefore they aren’t entitle to the distribution to the assets and debts.

Jurisdiction regarding a paternity action is different.  A non-resident submits himself to the jurisdiction of the state of Florida by engaging in the act of sexual intercourse within the state of Florida with respect to which a child may have been conceived.  However in Paternity cases, jurisdiction is a difficult topic that must be discussed with an experienced paternity and family law attorney.

Like jurisdiction, venue is also a difficult subject.  Venue relates to which circuit in the state of Florida a cause of action should be brought, and venue depends on the type of case filed and the location of the parties.  Before filing a Florida divorce, paternity or any family law case, be sure to talk to an experienced Tampa divorce attorney to ensure that Florida has jurisdiction over both the subject matter of the case and personal jurisdiction of the other party of the case; and be sure to inquire of your attorney which venue would be appropriate in your case.

Florida military divorces can be extremely complicated for a number of reasons, the most obvious being the division of the military pension.
The Uniformed Services Former Spouse Protection Act is a federal law that allows Florida courts to treat military retirement pay according to the laws in Florida. Florida therefore has jurisdiction in determining what portion, if any, of the military pension is a marital asset subject to property distribution.

The military pension is divided using a formula—called a coverture fraction—which establishes the marital portion of the pension and equitably distributes it between the parties in the form of a percentage. It’s extremely important for both the service member and the service member’s spouse that this formula be applied correctly. Likewise, it’s imperative that the language used in any settlement agreement (often called a Marital Settlement Agreement) or Final Judgment (the order that ratifies the divorce) be specifically tailored to meet the detailed requirements of the Department of Defense. If the settlement agreement or order is not done properly, the Department of Defense may not properly distribute the pension.

Military divorces also require the filing of other documents with the Department of Defense to effectuate the terms of an agreement or Final Judgment, such as an order requiring the Department of Defense to make the pension payments directly to the service member’s spouse (when applicable) and the election and designation of beneficiary of the Survivor’s Benefit Plan.

In summary, Florida military divorces require a detailed understanding of applicable federal law and Florida divorce law. Not only is it extremely important for the coverture fraction to be applied correctly to determine the marital portion of the military pension and distribute it accordingly, but the wording of the legal documents is equally important to ensure the Department of Defense adheres to the agreement by the parties or the order of the court.

If you are a service member or the spouse of the service member seeking a divorce, be sure to contact an experienced Florida military divorce attorney to ensure your divorce is done properly and your interests are protected. Please contact the law offices of Mindi Lasley, P.A. to consult with an experienced Tampa military divorce attorney.

At Mindi Lasley, P.A. we’ve handled numerous modification cases.  I’m often asked what provisions of a divorce decree (also known as a Final Judgment of Dissolution of Marriage) are subject to modification.  Unfortunately, there are many provisions of a Final Judgment that cannot be modified.  Furthermore, when a provision is modifiable, it’s not easy to do.  Your Final Judgment can’t be modified simply because you had a change of heart, made a mistake or didn’t have an attorney at the time of your divorce.  Because of the difficulties in modifying a Final Judgment, it’s important to have an experienced family law and Tampa divorce lawyer to advise you and protect your interests, both now and in the future.

If alimony is waived in the Final Judgment, neither party may try to request alimony in the future.  If alimony is awarded in the Final Judgment, it may be subject to modification depending on what time of alimony is awarded.  The standard for modifying alimony is a substantial, material and unforeseen change in circumstances.  An example of a circumstance in which a modification of alimony may be warranted is if one party loses his/her job.  Another example of when alimony may be reduced or terminated is if the party receiving the alimony co-habitats with another individual of the opposite sex.  The courts have also stated that the spouse that was ordered to pay alimony may retire at 65, which would provide for the substantial change in circumstances necessary to modify or terminate alimony.

Modification of alimony can be a complicated process with many hurdles to overcome.  There are many forms of alimony and they differ as to whether or not the amount can be modified, the duration of the alimony payments and when the alimony can be terminated.  When handling an alimony case, I consider the implications of each form of alimony and how it will affect my client in the future.  It’s important to plan in advance for a possible petition to seek a modification of alimony and you want to ensure your interests are adequately protected both during your divorce and years down the road.

Property distribution (legally called equitable distribution) is another aspect of a Final Judgment that cannot be modified.  After the judge distributes assets and debts between the parties, that issue is concluded and cannot be revisited.

Because there are many aspects of the Final Judgment that are non-modifiable, and the provisions that are modifiable are associated with many hurdles, it’s important to have an experienced divorce attorney on your side.

Please visit the divorce modification Tampa page for more information on the issues that can be modified.

• How is child support calculated? Child support is calculated based on a formula established by the Florida Legislature in Florida Statute Section 61.30 (called child support guidelines).  The first factor that must be established is how many overnight visits each parent has with the child(ren) and how many children you have with the other parent.  Both parents’ net incomes are taken into account and the statute establishes a dollar amount that is needed to raise the number of children you have based on how much money both parents make (this dollar amount is called the “need”).  Each parent pays a percentage of that dollar amount based on how much money he/she makes compared to the other parent.  To determine this percentage, each parent’s net income is divided by both parents’ combined net income.  Health insurance and child care for the child(ren) are also taken into account in calculating child support.  To view a child support calculator which would provide an estimate as to how much child support you’d have to pay, please visit http://www.alllaw.com/calculators/Childsupport/Florida/.  The judge has the authority to increase or decrease child support in the amount of 5% based on several factors.  However, if the judge increases or decreases the child support amount by greater than 5% , which is only done in extreme cases, the judge must make a written explanation as to why the increase or decrease from the child support guidelines is appropriate.

• How does the custody arrangement affect child support? Child support is based on how many overnight visits each parents has with the child(ren).  If a parent has 40% of overnight visits with the child(ren), then that parent’s child support obligation is lowered.  This is called Substantial Shared Parenting.  The theory behind this is that both parents are almost equally contributing to the support of the child(ren) by purchasing food, buying clothes and other items for the child(ren), etc.  Please note that this law is about to change.  For more information on the upcoming change, please consult an experienced family law attorney that stays up-to-date on changes made to the law.

• Does the parent receiving child support have to provide an accounting as to how the child support is being spent? No.  Child support includes things such as food and clothes for the child(ren) and assistance with other expenses the parent has in raising child(ren), such as providing a clean and stable home, toys, books and other such items.  Even using the child support towards rent/mortgage payments is acceptable because the custodial parent has the obligation of providing a home for the child(ren).

• How long do I have to pay child support? Child support is required to be paid until the minor child reaches the age of 18 or graduates high school, whichever occurs last, but no later than the age of 19.  There are, however, extenuating circumstances in which a judge may order parents to pay child support longer.  The most frequent example of this is if a child becomes disabled.  Parents are not obligated to pay college expenses for children, unless the parties agree to do so.  Child support may also terminate earlier than the age of 18 if the child becomes emancipated, joins the military or gets married.

• Do I have to contribute to my child’s college expenses? No.  In the state of Florida, parents will not be ordered to contribute to their child(ren)’s college expenses, however the parents can agree to do so.  If both parents agree to contribute to their child(ren)’s college expenses and the agreement is reduced to writing as part of a settlement agreement, then it can be enforced.

• How is health insurance and child care factored into child support calculations? A parent providing health insurance or for the child(ren) receives a credit for the monthly premium payments.  If the parent obligated to pay the child support is providing the insurance, then their child support obligation will be reduced.  If the parent receiving the child support pays the child(ren)’s health insurance, he/she will be entitled to receive more child support.  If both parents provide health insurance for the child(ren), then both parents may receive a credit.  Likewise, the parent paying the child(ren)’s child care expenses will receive a credit for such payments, however this credit is calculated a bit differently than the health insurance credit.

• I’ve remarried or I’m living with another person.  Does his/her income affect the amount I have to pay in child support? No.  Only the child(ren)’s parent’s income is used in calculating child support.  The income of the parent’s new spouse or boyfriend/girlfriend is not considered in calculating child support

• My child’s other parent isn’t working.  How can I get child support from him/her? If a parent isn’t working, unless that parent is disabled, usually the court will impute minimum wage to that parent, meaning that the court will assume that parent is making at least minimum wage and then calculate the child support guidelines using that number as that parent’s income.

• Can child support be waived if both parents agree to do so? No.  Child support is considered to be income for the purpose of the child and the custodial parent of the child does not have the right to waive child support.  Child support guidelines must be calculated in every case, even if the parents have equal timesharing with the child(ren), and child support must be paid accordingly.

• How is child support calculated if one child is living with me and another child is living with the other parent? This is a complicated question for which you should contact an experienced family law attorney that handles child support issues.

• What if I lose my job or my income increases or decreases and I can’t pay the child support ordered by the judge? In the event of involuntary unemployment or involuntary decrease in pay, that parent may go back to court to have the child support modified.  The parent with the decreased income must be prepared to explain to the judge everything he/she has done to attempt to find comparable employment making the original salary.

• When and how can child support be modified? Child support can be modified (either increased or decreased) upon the showing of a “substantial change in circumstances”.  However, the difference between the existing monthly obligation and the amount provided for under the child support guidelines must be at least 15% or $50, whichever amount is greater, before the court may find that the child support guidelines provide a substantial change in circumstances.

• I was served with an Administrative Order or a Complaint for child support by the Florida Department of Revenue, Child Support Enforcement.  What do I do? Whenever you are served with a Summons and a Complaint or Administrative Order, a response has to be timely filed in order to participate in the case, which you obviously want to do.  You need to contact a child support attorney in the event this occurs.

• What’s the maximum amount of child support I could be required to pay? The court may adjust the child support amount or a parent’s share of the child support amount when application of the child support guidelines requires a parent to pay the other parent more than 55% of his/her gross income for child support.

• Can child support be ordered retroactively? In an initial case (such as a paternity case or a divorce case), the Court can order retroactive child support up to 24 months preceding the filing of the petition.  Retroactive child support is a complicated issue in which the court may consider several mitigation factors so it is best to contact an experienced attorney regarding retroactive child support issues.

In a modification case, child support can be adjusted retroactively to the date the petition for modification is filed.

• I’m not receiving child support as ordered by the judge.  What are my remedies?The proper remedy would be to file a Motion for Contempt.  This is an in depth procedure for which you would want to contact an experienced family law attorney.  To be found in contempt, a person must be willfully violating a court order.  The parent that has been ordered to pay child support but fails to do so can be ordered to pay back child support (called an arrearage) with interest, reimbursement for the other parent’s attorney’s fees for bringing a contempt motion, a lump sum amount (called a purge amount), or any other sanctions the judge feels is appropriate.

• Can child support be deducted from the parent’s paycheck? Yes.  Upon an order of the judge or the agreement of the parties, child support can be deducted from the paycheck of the person required to pay child support.  This is done through an Income Deduction Order which must be signed by the judge.

• How often is child support paid? Child support can be paid as frequently or infrequently as the parents agree.  However, if the parents cannot agree, usually the judge will order child support to be paid once per month on in accordance with the pay cycle of the parent responsible for paying child support.  For example, if the parent ordered to pay child support gets paid every two weeks (which is called bi-weekly), then child support will be paid bi-weekly.  The judge has great latitude in determining how child support will be paid.

• I get income that is non-taxable.  Is this considered income for calculating child support? Usually, yes.  Income for calculating child support includes salary, bonuses, business income, dividends, disability benefits, worker’s compensation benefits, unemployment compensation, pension and retirement benefits, social security benefits, alimony, rental income, reimbursed expenses or “in kind” payments to the extent that they reduce living expenses (such as car allowances, food stamps, or BAH received by parents that are in the military), gains derived from dealings in property and other income received on a monthly basis.

Child Support Attorney Tampa

I’m often asked what the difference is between a divorce and an annulment.  A divorce dissolves the marriage between the Husband and the Wife.  An annulment is to judicially declare that a valid marriage never took place.  For an annulment to take place, the marriage has to either be void or voidable.

There’s no specific Florida Statute regarding annulment and an annulment is granted only in rare circumstances.  An annulment is an appropriate method of terminating a marriage when one of the parties lacked the capacity to enter into a legal contract (the marriage itself) because of the lack of mental capacity, extreme intoxication or because of a prior existing marriage.  The most common reason for an annulment is when a marriage is void because one of the parties is already married to someone else, even if that marriage took place out of state or in another country.  The law in Florida is that a marriage is not valid, and thus void, if one of the parties has a legal spouse at the time of the marriage.  It’s important to note that Florida law permits a third party, including a family member or the prior spouse to the first marriage in this example, to challenge the validity of a marriage.

A marriage is voidable and therefore has the possibility of being annulled based on fraud or duress.  In one instance, a party lied both to her finance and on the marriage application as to how many times she had been married and why those marriages had ended.  Subsequent to the marriage, her husband testified that he would not have married her had he known how many times she had been married.  However, the appellate court determined that their marriage could not be annulled because it had been consummated (meaning completed by sexual intercourse).  It is established law in Florida that one who has become a party to a wedding ceremony by fraud committed by the other person may be awarded an annulment if the marriage has not been completed by sexual intercourse.  Consummation of a marriage is an important factor for the court to consider in determining whether an annulment can be granted and appears to operate as a ratification of a marriage that is otherwise voidable.  It is important to keep in mind that if at the time of the ceremony the fraudulent conduct is known to the other party, then that marriage cannot be annulled.

Another example of a marriage that may be annulled based on fraud is when the parties marry and plan to start a family.  Both parties specify and discuss before the marriage that they want to have children.  Subsequent to the marriage, one of the parties finds out that the other party had himself/herself sterilized a year prior to the marriage.  In this case, there is an extremely good chance that the marriage could be annulled based on fraud.

Although fraud is a basis for an annulment, Florida courts have held that misrepresentation as to a pregnancy is not sufficient to be awarded an annulment.

If an annulment is granted, the court has the same ability to divide assets, award alimony, custody (now called timesharing in Florida) and child support as if the case were a divorce.

I meet with many people who would like to have their marriage annulled but it’s important to realize that there’s no established law or procedure for an annulment in Florida and it is very difficult to satisfy the requirement to obtain an annulment.  A divorce, however, definitely will be granted and terminate the marriage based upon the request of only one of the parties to a marriage.  To find out if you qualify for an annulment and to speak to a Tampa divorce attorney, please feel free to contact my office in Tampa, Florida and schedule an appointment.

If a child is born out of wedlock, Florida considers the mother the natural, legal custodian of the child, even if the father signs the birth certificate.  It’s important for Father’s to realize that they CANNOT stop an unwed mother from leaving the state unless the father has a custody order from the court.  It’s just as important to know that acknowledgment of paternity on a birth certificate does NOT equate to a right of temporay custoy superior to the mother’s prior to a court order from the family law court.  Until there is an order of custody, only an unwed mother may be entitled to a pick up order (which is used if a parent flees with the child).  The father of a child, even if his name is on the birth certificate, does not have the right to a pick up order because the mother is the natural, legal custodial of the child.  This is a very common misconception and one that fathers must be aware.

In order for a father to obtain parental rights over his child born out of wedlock, he needs to file a Petition to Determine Paternity with the family law clerk of court in Florida.  Essentially, even though paternity has been established as a matter of law (by the signing of the birth certificate), for a father to have parental rights, the ability to make decisions for the child and the right to have visitation (now called timesharing in Florida) with the child, the family law court in Florida must establish paternity and this must be done by filing a Petition to Determine Paternity.  Until the family law court establishes paternity and parental rights for the father, the father has absolutely no rights to even visit with the child.  All timesharing with the child is at the discretion of the child’s mother.

It’s important to note that both the father and the mother of the child can file a Petition to Establish Paternity to obtain legal rights and a parenting plan (which used to be called custody and visitation in Florida)

Child Support Enforcement through the Department of Revenue becomes involved in cases in which child support is an issue, especially if the mother receives state aid (such as Medicaid, food stamps, etc).  Even if a father has been ordered to pay child support by a hearing officer in a Department of Revenue Child Support Enforcement case, the father still has no legal parental rights until filing a Petition to Establish Paternity and having paternity established in the family law court.

Child Support Enforcement hearings are solely related to child support.  The hearing officer at these hearings does not have the authority to order any kind of parental rights or timesharing with the father and the child.

Many parents believe that if he/she is supposed to be receiving child support and is not receiving it, then he/she can withhold timesharing between the other parent and the child.  Likewise, many parents also believe that if he/she is not receiving the timesharing he/she is supposed to receive, that he/she can withhold child support.  Both of these assumptions are wrong.  There is no link between timesharing and child support as it relates to withholding one in order to get the other.  One of the worst things a parent can do is withhold timesharing from the other parent, except in very extreme circumstances which should be discussed with an experienced attorney.  Similarly, both parents have an obligation to financially support the child from the date the parties separate, even if a court order isn’t in place.  The non-custodial parent should be financially assisting the parent with whom the child resides beginning the date that the parents separate (“separate” meaning that the parents stop leaving together).

If you are a father with a child born out of wedlock but do not know the location of your child or the mother of your child, it is imperative that you register with the Putative Father Registry to prevent your child from being adopted.  You should contact an experienced family law attorney to assist you with this to protect your rights as a father.

Paternity cases—cases regarding children born out of wedlock—can be extremely complicated, especially since there can be two separate courts involved (the family law court which establishes parental rights, and the hearing officers with the Department of Revenue Child Support Enforcement division that determine child support).  To maneuver through this complicated process, one should at least consult with a Tampa child custody attorney who handles paternity cases.  My office represents both fathers and mothers in paternity cases and represents fathers in cases involving Child Support Enforcement with the Department of Revenue.

Many people are under the misconception that child support must be paid throughout college or until a child turns 21.  While this is true in other states, in Florida, child support terminates when a child turns 18.  However, if the child is still in high school with a reasonable expectation of graduating on time, then child support will continue until the child turns 19.  There is no law in Florida obligating either parent to pay for the child’s college education, although the parties to a Florida divorce or custody case can always agree to do this.

A few exceptions apply.  If the child becomes incapacitated or disabled and remains as a dependent, child support will more than likely continue.  On the other hand, if a child becomes emancipated or joins the armed forces, child support will cease at that time.

When there is more than one child involved, child support must be recalcuated when the child support ceases as to one of the children.

There are several factors that can be considered in determining child support.  The basic factors that must be considered are how many children there are belonging to the parties in the case, the timesharing arrangements as to each child, whether child care costs or medical insurance is being provided (in which case the party paying for child care or health insurance would get a credit) and the income of the parties.  These factors represent what is included in Florida’s Child Support Guidelines.

An upward or downward departure from the Child Support Guidelines (meaning a request to pay less in child support than the Guidelines specify and a request for the other party to pay more child support than the Guidelines specify) may be requested and awarded by Florida law in special circumstances, such as when a child has a disability or when a parent has a pre-existing child.  To determine if your case would qualify for an upward or downward departure from the Child Support Guidelines, you should contact an experienced Tampa child support attorney.

I’m often asked at what age a child is allowed to testify in court as to which parent the child wants to live with.   Unfortunately, in Florida there is no clear cut answer to this question.  For a child to testify in court, especially as to which parent the child wants to live with, a Motion has to be filed with the court and the ultimate decision is made by the judge.  Judges have different opinions about whether children should testify.  Even if a child was 17 years old a judge wouldn’t necessarily allow him/her to testify.  The rationale behind this is that the court system in Florida doesn’t want to place a child in the middle of a custody battle.  One of the biggest issues a judge considers in determing custody (now referred to as “majority timesharing” or which parent the child “primarily resides with”) is whether or not a parent has been discussing the court proceedings or has otherwise made the details of the court proceedings known to the child(ren).  Subjecting a child to testifying in court and deciding which parent he/she wants to live with places a child directly in the middle of the custody conflict which can be very emotionally damaging for a child.  If the child testifies that he/she wants to live with the Father, for example, then that child’s relationship with the Mother may forever be damaged.  Furthermore, the Mother in this example may punish the child for testifying “against” her.

As a Tampa child custody lawyer, I do file Motions to allow a child to testify if my client wishes to do so; however, I always warn my clients that in my opinion even bringing the motion before the court could look unfavorable because it illustrates to the judge my client’s willingness to place the child in the middle of the litigation.

Another reason judges are often hesitant to allow a child to testify is that the judge’s decisions are based on what is in the best interests of the child, and a child may not know what is in his/her best interest.  Sometimes a child has been “coached”, or told to testify a certain way by one of the parents and is afraid to testify contrary to what that parent has told the child to say.  Secondly, a child may base a decision regarding which parent he/she wants to live with on circumstances that are pleasing to the child but not necessarily in the child’s best interests, such as which parent is more lenient or which parent is stricter as to curfews, homework, bedtimes, etc.

I find that usually other witnesses can be called or other evidence submitted that is sufficient to use in the place of a child’s testimony.  For example, if a child was going to testify that he/she is involved in extracurricular activities in school and doesn’t want to leave those activities, I can easily prove the child’s involvement in these activities and the judge can reach the conclusion that the child is happy and well adjusted in his/her school.   In another example, if a child would be testifying that he/she has a bad relationship with the other parent, that can usually be established by other witnesses, including both parents’ testimony.  However, there are some cases in which nothing can replace a child’s testimony, such as cases in which physical and/or emotional abuse is involved.  If there is an allegation of abuse, a  judge is more likely to allow a child to testify, however it’s important to remember there still is not an exact age that the court has to hear the child’s testimony.  Most judge’s have a presumption against a child testifying, but the older the child is and the stronger the allegations are as to abuse or similiar issues, the more likely it is for the judge to allow a child to testify.  If a judge does allow the child to testify, the judge may simply take the child to  his/her office, sit down with the child and ask him/her questions.  The  judge can usually ascertain the information he/she needs to know by asking many questions about the child’s relationship with his/her parents, what activities the child does with the parents, etc.  Usually the judge can determine from these questions what the child’s preferences are without having to ask directly “which parent do you want to live with.”  Even if this testimony is conducted outside the presence of the parents, there’s usually a court reporter present and the child’s testimony is still recorded for either parent to access.

An alternative to a child testifying in court, and one that I use frequently, is to have the child see a doctor, counselor or have the judge order a custodial evaluation (also known as a home study).  If this is done and the doctor, counselor and/or custodial evaluator is determined to be an expert witness by the judge, depending on many factors, the child’s testimony may be admissible through these individuals.  A doctor, counselor and custodial evaluator may also be able to state his/her opinion as to which parent the child should live with and provide specific information as to how that decision was reached.  Please note that this may not be applicable in some cases and it is ultimately up to the judge to determine what evidence will come into court and what weight the judge will give the evidence.  There are many factors that apply in determining what testimony and evidence can be used in court.

Allowing a child to testify in a custody case is not a decision that should be taken lightly due to the emotional toll it may have on the child and the reprucussions the child may face because of the way he/she testifies.  Because of this, based on my experience in the Tampa Bay area, judges in the Tampa are are extremely hesitant to allow a child to testify in court.  There is specifically one judge that openly has a policy of prohibiting childrens’ testimony altogether and has never allowed a child to testify.  The decision of whether or not the child shall testify is ultimately made by the judge and based on a substantial number of factors.  Although there is no specific, clear cut age in which a child can testify in Florida as to which parent he/she wants to live with, the older the child is and the more serious the issues are in the case, the more likely it is that a judge will allow the child to testify as to which parent the child wants to live with.

Many people are under the misconception that there is a formal “legal separation” that can be filed with the courts instead of filing an actual divorce.  There is no formal legal separation in Florida, unlike many other states, even if one spouse moves out of the marital residence (marital residence is generally defined as the last place both spouses lived together).  There is, however, a Petition for Support Disconnected with Dissolution of Marriage that may be filed which can enable one spouse to get child support and alimony (if applicable) from the spouse that moved out of the marital residence without actually filing for divorce.  When there are children involved in a marriage, if one spouse moves out of the marital residence then that spouse is responsible for contributing to the financial support of the minor child(ren) left with the other spouse.  Furthermore, even if one spouse moves out of the marital residence, that spouse is still entitled to visitation (now called “timesharing”) with the children along with frequent communication.  Please note that one of the worst things a spouse can do as far as the courts are concerned is withhold visitation with the child(ren) from the other spouse, even if that spouse moves out of the marital residence.

As a Tampa divorce lawyer, one of the questions that I’m frequently asked is what can be done to keep one spouse out of the marital residence.  Unfortunately, until ordered by the court or otherwise agreed to, both parties have the right to live in the marital residence and neither party can force the other party to move out, regardless of whose name is on the deed or lease, and regardless of whether a spouse isn’t contributing to marital bills (such as the mortgage/rent payment, utilities, etc).  Even if one spouse vacates the marital residence for a period of time, that spouse is still able to return to the residence or even move back in the marital residence.  It’s not unusual for two spouses to both live in the marital residence together during the pendency of a divorce.  It’s difficult for a married couple to be able to support two households, especially when children are involved.  Furthermore, if the marital residence is property that is owned by the couple, the spouse moving out is still required to financially contribute to the mortgage payments in order to maintain the house as an asset.  Just because one spouse moves out of the marital residence doesn’t excuse that spouse from marital bills.  Because of this, it is often more economical for a married couple to live together during the divorce until it is established what will be done with the marital residence and who will take possession of it or decide whether or not it is to be sold.

Another option that can be used instead of filing for divorce is signing a post-nuptial agreement.  A post-nuptial agreement is essentially the same type of agreement as a pre-nuptial agreement except it is entered into after the parties are married.  This can specify how assets, debts, alimony and other issues will be handled in the event of a divorce in the future.  Please note that post-nuptial agreements can be very technical and not all issues can be specified in these agreements.