Uncontested Divorce in Naples, Florida

Uncontested divorce in Naples, Florida is not only possible, it is easily achieved under the right circumstances.  Many divorces share two things in common: 1) they parties agree that they should divorce, 2) The parties agree as to what should happen after their divorce.

Agreeing to a divorce is the easy part.  Unpacking an entire marriage in a way that’s fair and satisfying to each party is the difficult part.

When the parties to a divorce don’t have children, many assets or any need for support, there is not a lot to “unpack” so, in Florida, a simplified divorce is available.

Simplified Divorce

The Florida Family Law Rules of Procedure provide both instructions for filing a simplified petition for dissolution of marriage and the forms to fill out to request a simplified divorce.

The form is very particular as to who is eligible for a simplified divorce.

• You and your spouse agree that the marriage cannot be saved.
• You and your spouse have no minor or dependent child(ren) together, the wife does not have any minor or dependent children born during the marriage, and the wife is not now pregnant.
• You and your spouse have worked out how the two of you will divide the things that you both own (your assets) and who will pay what part of the money you both owe (your liabilities), and you are both satisfied with this division.
• You are not seeking support (alimony) from your spouse, and vice versa.
• You are willing to give up your right to trial and appeal.
• You and your spouse are both willing to go into the clerk’s office to sign the petition (not necessarily together).
• You and your spouse are both willing to go to the final hearing (at the same time).

If you meet all of these requirements, there are still a lot of not-so-simple steps. After filing the simplified petition for dissolution of the form on-line or in person at the Collier County Courthouse.  You must attach a signed Marital Settlement Agreement.

The standard form for a Marital Settlement Agreement provided by the Florida courts is woefully incapable of handling all but the simplest divorces.

If either person has any 401ks or pensions, there is no language as to how those assets should be divided to avoid a tax penalty.

If the parties own real estate together, there is no language for a scheduled sale of the home or the signing of a quit claim deed to release the home to the other party.

If there are mutual credit cards, there is no schedule for paying those cards and closing them.

Sadly, the simplified divorce forms only work for the simplest of divorces.

Eligibility Criteria for Simplified Divorce in Florida	Requirements
Mutual Agreement	You and your spouse both agree that the marriage cannot be saved.
No Minor/Dependent Children	You and your spouse have no minor or dependent child(ren) together. The wife does not have any minor or dependent children born during the marriage, and she is not currently pregnant.
Division of Assets and Liabilities	You and your spouse have agreed on how to divide your assets and liabilities, and you are both satisfied with this division.
No Alimony Request	You are not seeking support (alimony) from your spouse, and vice versa.
Waiver of Trial and Appeal Rights	You are willing to give up your right to trial and appeal.
Signing and Final Hearing	Both you and your spouse are willing to go into the clerk’s office to sign the petition (not necessarily together), and you are both willing to attend the final hearing (at the same time).

Uncontested Divorces Using An Attorney

A divorce can still be done fairly simply and effectively if the parties do not meet the Florida simplified divorce qualifications.

In my law office, if a person comes to me seeking a divorce, I will assume that the divorce will be uncontested.  I use my client’s completed financial affidavit and completed parenting plan to begin crafting final documents.  There may be many blank spaces left for both the client and the opposing party to fill in. Even incomplete final divorce documents help isolate the remaining issues and educate both parties as to the structure of their final settlement.

The final documents must be prepared at some point in the divorce case so we might as well prepare them right away to relieve the anxiety of both parties and move us so many steps closer to settlement.

After reviewing the final documents the opposing party will usually submit their own financial affidavit, submit proposed changes to my office or retain their own attorney.

Contested Divorces…For Now

Just because the divorce isn’t completely agreed does not mean the case is contested.  98% of all divorces end up settling and thereby become uncontested divorces.

Usually a divorce is happening per the person who filed the divorce petition’s schedule.  The other party is still absorbing the reality of divorce and may not be ready to settle right away.

After the respondent of the divorce is served, the parties are required to exchange initial financial documents like the financial affidavit within 45 days.

Upon receipt of the financial documents, almost all the financial issues can be resolved with a quick analysis of the numbers.  Child support is a calculation. Division of marital assets in Florida “must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution” Fla. Stat. Sec. 61.075(1)

For some couples, quick calculations may resolve all outstanding issues.

But there are lots of exceptions to the above rules regarding finances and divorce….and alimony has almost no black and white rules.  Parenting time, of course, cannot be determined with a mathematical formula.

In cases where there are still outstanding disagreements after preparing proposed final documents, the parties can be referred to mediation.

Typically, a lot of those unresolved issues get resolved almost immediately via motions for temporary relief such as a motion for exclusive possession of the marital residence.  A judge’s ruling on a temporary motion usually lets the parties know “which way the wind is blowing” as to final rulings and further encourages settlement.

If you’d like to learn more about uncontested divorce in Naples, Florida, contact my Naples, FL family law office to schedule a free consultation with an experienced Florida divorce lawyer.

source https://divorceattorneynaplesfl.com/uncontested-divorce-in-naples-florida/

How Do I Deny Paternity In Naples, Florida?

In Florida, to deny paternity you must be found to the be the father or at least accused of being the father.

Typically, paternity is established merely by the parties being married.  If you are married to a woman and the woman has a baby, you are the legal father in Florida (at least initially).

If a man is not married to a woman but the woman agrees that he is the father, the woman directs the man (usually with the assistance of someone at the hospital) to sign a voluntary acknowledgment of paternity.  This form, once signed creates a rebuttable presumption of paternity which can be rescinded by either the man or the woman within 60 days.  Fla. Stat. Sec. 742.10(1).  After 60 days, only the legal father can contest the paternity based on “fraud, duress, or material mistake of fact, with the burden of proof upon the challenger[the legal father]” Fla. Stat. Sec 742.10(4)

If mother and father are not agreed at the hospital when the voluntary acknowledgment of paternity is circulated, often, paternity is found via the simple declaration of an administrative judge in a child support proceeding.  The administrative judge gets the man to admit paternity or submit to a DNA test and then declares the man “the father”.  This can still be challenged in a non-administrative or a “true” court.

The court to challenge the paternity is usually the court within which the child lives.  So, if the child lives in Naples, Florida, you could challenge the paternity in Collier County.  You could probably still challenge the parentage order in Collier County if you lived in Naples, Florida and there was no previous court order relating to parentage in another county.

There are some things that can prevent a denial of paternity forever no matter what.  If the alleged father has ever claimed the paternity for some type of legal advantage to himself, as a father, then he is forever barred from denying that paternity.  For example, you cannot declare yourself the father to defeat another man’s claim of being the father and then disavow paternity.  S.B. v. D.H. 736 So. 2d 766, 767 (Fla. 2d DCA 1999).

More typically, you cannot say publicly, “I’m the father” for a period of more than two years and then deny paternity.  C.C.A. v. J.M.A., 744 So. 2d 515 (Fla. 2d DCA 1999).  Additionally, a woman cannot hold a man out as the father for two years and then ask the court to declare that same man not to be the father (but that alleged father can always agree that he is not the father).  Barker v. Barker, 785 So. 2d 1273 (Fla. 5^th DCA 2001).

In 2006 a specific statute, Fla. Stat. Sec. 742.18(1) was enacted in Florida about how a legal father (which we covered above) can challenge paternity when he finds out he is not the biological father.  It requires the following:

“To disestablish paternity or terminate a child support obligation, the male must file a petition in the circuit court having jurisdiction over the child support obligation.” Fla. Stat. Sec. 742.18(1).  This means just going to the county court the child is living in or the child support order was filed in.

The petition must then be served upon the mother and, if there’s a child support order administered by the department of revenue, the department of revenue must be served as well.

This petition must include, “An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.” Fla. Stat. Sec. 742.18(1)(a).  This generally means reasons for a suspicion that are confirmed by a DNA test that the next section of the statute discusses as “The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required” 

If the father cannot get access to the child (there is no visitation available to apply a quick swab test available on Amazon for $ 99.99) then can just testify to that fact.  Failing that, the alleged father can ask the court to have the child submit to a DNA test.

The statute then elaborates when you CAN NOT deny paternity in a Florida court:

An alleged father must be current on his child support to file this motion or his child support owed is due to a “inability for just cause to pay the delinquent child support.” Fla. Stat. Sec. 742.18(1)(c).

The child cannot have been the result of an artificial insemination while the alleged father was married to the mother. Fla. Stat. Sec. 742.18(1)(e).  It obviously wouldn’t be fair to use a sperm donor as an excuse.

The alleged father cannot have done anything to prevent the biological father from asserting his rights. Fla. Stat. Sec. 742.18(1)(f).

The child in question must be under the age of 18.  Fla. Stat. Sec. 742.18(1)(g).

Then the statute allows for a second test wherein the mother can refute any denial of paternity (that meets the above requirements) if she can show that the alleged father did one of the following things AFTER he learned that he was not the biological father:

“(a) Married the mother of the child while known as the reputed father in accordance with s.742.091 and voluntarily assumed the parental obligation and duty to pay child support;

(b) Acknowledged his paternity of the child in a sworn statement;

(c) Consented to be named as the child’s biological father on the child’s birth certificate;

(d) Voluntarily promised in writing to support the child and was required to support the child based on that promise;

(e) Received written notice from any state agency or any court directing him to submit to scientific testing which he disregarded; or

(f) Signed a voluntary acknowledgment of paternity as provided in s. 742.10(4).”Fla. Stat. Sec 742.18(3).

It’s been just a little over 10 years since this statute was enacted by the Florida State Legislature but it has proven to be very difficult to overturn paternity in the Florida courts while using this statute. The question usually becomes, “When should you have known you needed a DNA test?”  The courts are split on whether you can come back after 15 years or so and ask for a DNA test. For many Florida appeals courts at some point, it is too late…or is it? The issue is extremely sensitive and deserves the attention of an experienced lawyer.

Contact my family law office in Naples, Florida and speak with a Florida divorce lawyer to learn more about the process of investigating, confirming or denying paternity under Florida law.

Denying Paternity in Naples, Florida	Details
Establishing Paternity in Marriage	Marriage often establishes paternity; married to the mother, you’re the legal father.
Voluntary Acknowledgement of Paternity	Unmarried man acknowledged as father by mother can sign voluntary paternity form; can be rescinded within 60 days.
Administrative Judge’s Declaration of Paternity	Administrative judge may establish paternity in child support proceedings; can be challenged in non-administrative court.
Challenging Paternity in Child’s County	Challenge paternity in the court where the child resides; location determines jurisdiction.
Restrictions on Denying Paternity	Past claims of paternity for legal advantage or holding out as father can prevent denial; time limits on changing paternity claims.
Challenging Paternity under Fla. Stat. Sec. 742.18	File petition in circuit court where child support is administered; provide affidavit with newly discovered evidence; present scientifically accepted tests showing low probability of paternity.
Additional Considerations for Denying Paternity	Meet certain requirements: be current on child support or unable to pay for just cause; child under 18; child not result of artificial insemination while married; not prevent biological father’s rights; mother’s possible refutation based on certain actions.

source https://divorceattorneynaplesfl.com/how-do-i-deny-paternity-in-naples-florida/

How Do I Legally Change A Child’s Name In Naples, Florida?

In most states, the birth certificated is just a formality with no legal control.  In Florida, the birth certificate is a big deal.  Listing the father on the birth certificates can make that man the legal father automatically, (but this can be undone by court order).  Fla. Stat. Sec 382.013(2).

Likewise, whoever puts the child’s name on the birth certificate gets to name the child.  If the mother and father are married to each other they will typically agree.  If the husband and wife fail to agree, the last name of the child will be a hyphenated version of each name they both selected in alphabetical order.  Fla. Stat. Sec. 382.013(3)(b).  For example, If Amber Allen and Bruce Battenburg have a child together and can’t settle on the child’s name, the child’s last name will be Allen-Battenburg.

If the parents are not married, the mother has the right to name the child for both first and last names.  Usually this isn’t a problem, except in the very common occurrence of the mother giving the child her last name and not the father’s last name.  The child carrying the father’s last name is not automatic.  Girten v. Andreu, 608 So. 2d 886 (Fla. 3d DCA 1997)

The father can’t even ask that the child’s name be something different until he has established paternity with the court.  Once a father, has established paternity, the father can then petition the court to change the child’s last name to the father’s last name.

Paternity typically gets established in the county where the child lives.  If your child lives in Naples, Florida, you can go to the Collier County courthouse to establish paternity.

If the father wants to change the child’s last name, the father must show that it is in the best interests of the child that the child’s carry his last name.   V.S. v. B.M., 281 So. 2d 587 (Fla. 2d DCA 1973).  In my experience, the judge will often push the parties to agree to a hyphenated name and, failing that, the judge will give the child the father’s name purely because of the cultural tradition.  This, of course, depends on the judge and the judge’s opinion of how important a last name is.  If the child knows their last name (this usually happens between ages 2 and 3) then the judge will often not allow for the change of a last name.

If for some reason (usually spite) a party asks to change a child’s last name during a divorce proceeding, the courts will almost always deny that request.  Airsman vs. Airsman, 179 So. 3d 342, 345 (Fla .2d DCA 2015).

If parents together decide to change their child’s name (first or last), they don’t do so through the family law courts but rather through the chancery courts pursuant to Florida statute section 68.08(7) “A husband and wife and minor children may join in one petition for change of name and the petition must show the facts required of a petitioner as to the husband and wife and the names of the minor children may be changed at the discretion of the court.”

If only one person wants to change the child’s name they follow Florida statute section 68.08(8), “When only one parent petitions for a change of name of a minor child, process shall be served on the other parent and proof of such service shall be filed in the cause; however, if the other parent is a nonresident, constructive notice of the petition may be given pursuant to chapter 49, and proof of publication shall be filed in the cause without the necessity of recordation.”  This means the other parent has to be formally served notice if they live in Florida.  If the other parent does not live in Florida and presumably cannot be found, you can publish the notice in the newspaper.

The two ways to change a child’s name in Chapter 86 of the Florida statutes seem very simple compared to what I wrote earlier in this article.  Unfortunately, you cannot use this chapter if there’s an ongoing divorce or a paternity case. “This section does not apply to any change of name in proceedings for dissolution of marriage” Fla. Stat. Sec. 68.07(9).

Contact my family law office in Naples, Florida to speak with a Florida divorce lawyer to learn if changing your child’s name is viable.

Topics	Details
Birth Certificate Role	In Florida, birth certificates hold legal significance; listing father can establish legal paternity and child’s name.
Naming Convention for Married Parents	If married parents agree, child’s name is usually settled; if not, hyphenated version of each parent’s name in alphabetical order.
Naming Rights for Unmarried Mothers	Unmarried mothers have right to name child; father’s last name not automatic, requires paternity establishment to change.
Changing Child’s Last Name	Father can petition to change child’s last name after establishing paternity; court considers child’s best interests.
Paternity Establishment	Paternity typically established in county where child resides, such as Collier County for Naples, FL.
Court’s Consideration of Name Change	Court weighs best interests and cultural tradition; child’s age and familiarity with last name impact decision.
Changing Name During Divorce	Requesting name change during divorce is often denied by courts.

source https://divorceattorneynaplesfl.com/how-do-i-legally-change-a-childs-name-in-naples-florida/

How Do I Get Custody Of A Child That is Not My Biological Child In Naples, Florida?

In Florida, there are four ways to get custody of a child that is not your own: 1) Adoption, 2) Appointment of a Guardian, 3) Intervention by the State Department of Children and Families in a dependency action, and 4) Temporary custody under Chapter 751.

The first step in seeking any kind of custody is usually gaining temporary custody.  Typically, temporary custody can be granted routinely if both parents consent to the grant of temporary custody.  This is very common for military families or families that are undergoing a temporary crisis.

If the child lives in Naples, Florida, or lived in Naples Florida for at least six months during the last six months the jurisdiction for this action typically will be in Collier County.

Only “an extended family member” may bring a petition for temporary custody in the Florida courts.  Fla. Stat. Sec. 751.02 to 751.03. This includes grandparents, cousins, aunts and uncles, siblings or half siblings.

If you are not a relative of the child, you cannot ask for temporary custody under Chapter 751 and must proceed via adoption or guardianship under Chapter 744.

If only one parent consents to the temporary custody but the other parent cannot be found, temporary custody can still be granted as long as you have diligently searched for the missing parent.

If a parent formally objects to a grant of temporary custody (or any custody) then that non-parent will not be granted custody unless there are extreme circumstances.  A parents’ right to be a parent and have control of their child’s life has been held by both the Florida and United States’ Supreme Courts as a fundamental right and therefore cannot be usurped for almost any reason.

The courts still must find that the grant of temporary is 1) consented to by the parents and 2) in the best interests of the child.  This is done through a hearing where evidence is presented as to why this award of temporary custody would be in the best interests of the child.  The evidence is almost always just testimony from the petitioner (the person seeking temporary custody).

Temporary custody can be terminated very easily by a parent disavowing their consent and reinstating their rights.  The facts would have to be extreme for a court to continue a temporary visitation after the disavowal of a parents’ consent.

For example, a parent who had never met the child could not just swoop in and take custody of the child from a grandmother with temporary custody.  The parent’s rights to their children are fundamental constitutional rights so, in cases like this, the court will often set up a transition plan.

In the case where a parent has been found to be unfit, the parent must simply prove their fitness to reinstate their rights and terminate the temporary custody order.

In lieu of this concept that temporary custody competes with the parents’ custody the legislature changed the statute so that temporary custody could be considered “concurrent.”  This essentially turns the temporary custodian into a 3^rd parent.  There is, however, no statute available to direct concurrent custodians and parents in the event that they disagree upon something related to the welfare of the child.

In lieu of temporary custody, a non-parent can proceed under Chapter 744 of the Florida Statutes and ask for guardianship.  Guardianship is almost always pursued in cases where the parents are dead, incapacitated or unavailable.  Guardianship is also used in cases where a child is to receive some kind of large settlement and a non-interested third party is needed to oversee the money which the child will receive until that child turns 18.

If you are looking to take custody of a child that is not your biological child, then I know you’re doing things from the heart and for the right reasons.  As a Florida family lawyer, please contact my Naples, Florida family law office so I can help you and help this child.

source https://divorceattorneynaplesfl.com/how-do-i-get-custody-of-a-child-that-is-not-my-biological-child-in-naples-florida/

How Do I Determine My Income or My Spouses Income In My Naples Florida Divorce?

Whether it’s determining alimony or determining child support in a Naples, Florida divorce, income is the biggest factor in determining either of those obligations.

The Florida statute goes into great specifics about what shall be considered income for the purposes of child support or alimony.

“Income” means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government , or any unit of local government, or any uint of local government.  United States Department of Veterans Affairs disability benefits and unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support. Fla. Stat. Sec 61.046(5)

As you can see, it’s not simply the money you get from your check.  Bonuses, business income, and options may all be available through your job and those benefits that eventually can be turned into cash will be considered income.

Investment income is considered income for the purposes of child support and alimony. It can be as simple as dividends from stocks or rents from real estate.  Investment income can also be shielded from looking like current income in myriads of ways.  For example, Warren Buffet’s famous stock, Berkshire Hathaway, has regularly grown but has never issued a dividend.

Florida alimony attorney

The division of marital assets can often create income to both parties.  For example, if a pension is divided in two, both parties’ pension payments will be considered as income to each party, respectively.

Perhaps the better question to ask is: “what is not income?”

One time distributions may be considered as a capital asset and not as income. Vollmer v. Vollmer, 33 So. 3d 67 (Fla. 1^st DCA 2010)

Drawing down your assets (not just taking an interest payment or dividend) is also not be considered income.  Receiving cash by taking on debt is also not be considered income for child support or alimony purposes.

What isn’t income is often what gets litigated in a divorce case.  Spouses will declare their annual bonus as a one-time distribution because “it’s not guaranteed.”

Cash income or secret second jobs can usually be proven via bank records and/or spending habits.

During a divorce, people often deliberately stop working, don’t work as much or suddenly find work in a lower paying field for the purpose of reducing their income.  Courts can then impute income to that party based on these facts.

Finally, business owners are notorious for masking personal income as business expenses.  Those expenses which are mostly for personal purposes should be recalculated as additional income to the party.

Business owners also can appear to have a lower income due to the nature of “pass through” entities like Chapter S corporations.  Courts are very familiar with the concept of “pass through” income and do not allow that amount to be the exclusive calculation of income in a divorce. Zold v. Zold, 911 So. 2d 1222 (Fla. 2005) Courts will look to cash withdrawals and other cash flow to determine income.

The biggest issue with determining income is that the proof of the income is usually under the control of the person earning the income.  This requires the other party’s lawyer to issue discovery requests to the person regarding their income and subpoenas to third parties (customers and clients) to verify the income.  In my experience, if there’s any evidence of manipulation of income for the purposes of reducing income for the divorce, the judge starts making estimates about what the person really earns.  Those estimates are almost always on the high side.

Defending an accusation of misdirecting income is simple: disclose everything exhaustively.  After sifting through thousands of pages of bank documents, the other side will realize there is no hidden “Easter Egg”

If you have more questions about income and support for your Collier County divorce, contact my Naples, Florida family law office to schedule a free consultation with an experienced Florida divorce attorney.

Types of Income and Benefits	Details
Wages, salary, commissions and bonuses	Payment received as part of employment
Compensation as an independent contractor	Payment received as a self-employed individual
Worker’s compensation	Benefits received due to work-related injury or illness
Disability benefits	Benefits received due to a disability
Annuity and retirement benefits	Periodic payments from annuities or retirement plans
Pensions	Periodic payments from pension plans
Dividends, interest, and royalties	Income generated from investments
Trusts and other payments	Payments received from trusts or other sources
United States Department of Veterans Affairs disability benefits and unemployment compensation	Excluded from the definition of income, except for support purposes

source https://divorceattorneynaplesfl.com/how-do-i-determine-my-income-or-my-spouses-income-in-my-naples-florida-divorce/

How Does My Age Affect My Naples Florida Divorce?

Elderly or grey divorces are becoming more and more common. Age can be a factor in Florida divorces insofar as it impacts alimony.

In Florida people over age 65 have an extra right to speedy trial (for presumably morbid reasons).  “Civil actions involving elderly parties; speedy trial.—In a civil action in which a person over the age of 65 is a party, such party may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the initial complaint or at any time thereafter.” Fla. Stat. Sec. 415.1115

So, a party to a Florida divorce would have his case heard “at the front of the line” if he or she so wished.  Often discovery matters are going to take a while so this issue may be moot unless the parties have simple (or no) assets and are eager to get re-married.

Obviously, it is more likely for an older person to qualify for statutorily mandated permanent maintenance because it is more likely that an older person has been in a 17+ year marriage.

Age often effects income and alimony is largely determined by both parties’ incomes.

While age discrimination is illegal when hiring and promoting employees, we all know that older workers face more difficulty in finding employment than younger workers, especially if they have been out of the workforce for a long period.  Florida courts are willing to acknowledge these employment difficulties when calculating alimony. Lynch v. Lynch, 695 So. 2d 843 (Fla. 3d DCA 1997)

Age often comes with various mental or physical disabilities that limit earning potential.  This effects both a party’s ability to self-support or, alternatively, to pay alimony.

Florida divorce attorney

An advanced age makes an alimony-receiver far more likely to be awarded permanent alimony…even in a short marriage. Levy v. Levy, 900 So. 2d 737 (Fla. 2d DCA 2005)

Florida courts consider awarding permanent alimony to a party in a short-term marriage if a disability occurred during the short term marriage.  At an advanced age, several disabilities can be identified as occurring during the marriage: stroke, heart attack, etc.  Other disabilities associated with aging may not have a singular moment that can be said to have occurred during the marriage: dementia.

If the disability is found to have existed before the marriage, there can be no award of permanent or rehabilitative alimony if the marriage was classified as a short term marriage. Kunzweiler v. Kunzweiler, 698 So. 2d 1251 (Fla. 5^th DCA 1997)

Disability is often proven via medical evidence but in the case of the broader concept of “being old.” A party’s testimony alone may suffice as evidence of an age related disability. de Gutierrez v. Gutierrez, 19 So. 3d 1110 (Fla. 2d DCA 2003)

For the alimony-payor, age definitely matters.  The Florida supreme court says you are allowed to retire at age 65 and reduce your alimony on your 65^th birthday.  Pimm v. Pimm, 601 So. 2d 534 – Fla: Supreme Court 1992

Additionally, marital assets can be impacted by age.  Often, a person’s largest asset is their 401k, IRA or other tax-deferred retirement account.  A Florida court would be loath to force a withdrawal from one of those accounts if the holder of the account was under age of 59 1/2 as they would incur a 10% penalty under the law. 

The division between marital and non-marital assets is more difficult when the parties are at greater ages.  It is rare to perfectly isolate a non-marital asset and claim that the other party contributed nothing to the asset over 20 plus years, especially a house.  Additionally, it is rare to have all the paperwork after 20 plus years to rebut the presumption that the asset is marital.

Unfortunately, with age comes illness.  The possibility of terminal illness can dramatically effect a divorce.  If you or your spouse die before the divorce is granted, the marital assets will be divided via the probate court not the divorce court.

Naples, Florida’s median age is 66.8 so age is often a factor in Collier County divorces and the Collier County judges will thoughtfully consider how your age will impact the outcome of your divorce.  Contact my Naples, Florida family law office to speak with an experienced Florida divorce attorney and to learn more about what can and will happen in your pending divorce.

Impact of Age in Florida Divorce	Details
Speedy Trial for Elderly Parties	Elderly parties over the age of 65 can request to advance the trial on the docket in civil actions.
Qualification for Statutorily Mandated Permanent Maintenance	Older individuals are more likely to qualify for permanent maintenance due to longer marriages.
Alimony Calculation	Age-related employment difficulties and disabilities can be considered when determining alimony.
Awarding Permanent Alimony in Short Marriages	Advanced age and disabilities occurring during the marriage may lead to the awarding of permanent alimony in short-term marriages.
Disability Proof	Testimony alone may suffice as evidence of an age-related disability.
Retirement and Alimony Reduction	Retiring at age 65 allows for a reduction in alimony payments.
Impact on Marital Assets	Age can affect the division of marital and non-marital assets, especially when it comes to retirement accounts and property accumulated over a long period.
Terminal Illness and Divorce	In case of terminal illness and death before the divorce is granted, the division of marital assets will be handled by the probate court.

source https://divorceattorneynaplesfl.com/how-does-my-age-affect-my-naples-florida-divorce/

Florida Child Support After Age 18

Child support is money owed by one parent to the other parent for the purpose of supporting the child that the other parent is caring for.

“In a proceeding under this chapter [DISSOLUTION OF MARRIAGE; SUPPORT; TIME-SHARING], the court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent or, in the case of both parents, to a third party who has custody in accordance with the child support guidelines schedule in s[ection]. 61.30.” Fla. Stat. Sec. 61.13(1)(A)

Every Florida child support order must have a termination date. The termination date is usually the child’s 18^th birthday.

“As a general rule, the legal duty of a parent to support his children ceases at the age of majority.” Kern v. Kern, 360 So. 2d 482 – Fla: Dist. Court of Appeals, 4th Dist. 1978

“All child support orders and income deduction orders entered on or after October 1, 2010, must provide:

a. For child support to terminate on a child’s 18th birthday unless the court finds or previously found that s. 743.07(2) applies, or is otherwise agreed to by the parties;” Fla. Stat. Sec. 61.13(1)(A)(1)

In Florida, a child’s 18^th birthday terminates child support unless the court finds the child has a disability or the child will likely still be in high school (and will not have turned 19 yet).

“This section [Rights, privileges, and obligations of persons 18 years of age or older] shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.” Fla. Stat. Sec. 743.07(2)

Age 18 is the standard date for child support to terminate in Florida. The parties can agree on a later date (usually high school graduation that a court would award anyways) or the courts can order a later termination date (but not later than age 19).

“Ordinarily, a child support order terminates automatically on a child’s eighteenth birthday. This is because a parent has no legal duty to continue to provide support to a child who has reached the age of majority unless the trial court has made a finding of dependence pursuant to section 743.07(2), Florida Statutes (2010)” Dixon v. Dixon, 233 So. 3d 1285 – Fla: Dist. Court of Appeals, 2nd Dist. 2018 (citations omitted)

If nothing is agreed to by the parties in the original or subsequent child support orders, the child turning age 18 is the automatic termination date.

A “final judgment’s silence on the continuing obligation of support after the child’s eighteenth birthday results in the… [support] obligation … also terminating upon the child’s eighteenth birthday.” Phillips v. Phillips, 83 So.3d 903, 905 (Fla. 2d DCA 2012)

When the original child support is for multiple children and the obligor’s support obligation as to one child ends when the oldest turns 18, “the obligor is entitled to a retroactive reduction pre-dating a modification petition, consistent with the statutory child support guidelines” Gilbert v. Cole, 107 So.3d 426, 427-28 (Fla. 1st DCA 2012)

“Children who have early-in-the-year birthdays and who will turn nineteen before a June graduation, are entitled to no support during their eighteenth year, even though they are in need, in school, and ‘on track.” Walworth v. Klauder, 615 So. 2d 219 – Fla: Dist. Court of Appeals, 5th Dist. 1993

A Florida divorce court has no wiggle room. Child support always stops at age 19 unless there is a finding that the child has a disability.

A “trial court’s award of child support ‘until the parties’ minor child reaches the age of 19 or upon her graduation from high school, whichever occurs first” [is in] error.” Drake v. Drake, 686 So. 2d 753 – Fla: Dist. Court of Appeals, 1st Dist. 1997

Parties can contract in their Marital Settlement Agreement to terminate child support upon the children’s 18^th birthdays….not the children’s high school graduation.

“The policy of requiring parents to support their children is limited to their minority and dependency. The statute does not itself require the parent to continue to support the child after reaching majority while in the last year of high school. Rather it merely authorizes the court to do so if the statutory conditions are met.” Rose v. Rose, 8 So. 3d 1251 – Fla: Dist. Court of Appeals, 4th Dist. 2009

Most marital settlement agreements will include an automatic provision to stop child support on a date certain. Almost all marital settlement agreements will also set child support for the remaining minor children when the current child support amount automatically terminates. This process repeats in what is called a “step-down” order.

If there is no automatic child support termination date or a step-down order, it is incumbent on the child support payor to file a motion to modify child support…or the support doesn’t change.

“The general rule is that when the child support provision fails to allocate the amount of support attributable to each child, the trial court cannot retroactively terminate child support before the date the petitioner requested such relief.” Rodgers v. Reed, 931 So. 2d 236 – Fla: Dist. Court of Appeals, 5th Dist. 2006 (quotations and citations omitted)

If a motion to modify child support is filed late, a Florida court can go back to the date the child emancipated.

“[I]f there must be resort to the court for recalculation of the child support amount for the remaining children, then the recalculation is retroactive to the date the child attained eighteen (or had another qualifying event)” Karten v. Karten, 983 So.2d 17, 19 (Fla. 3d DCA 2008) 

If the marital settlement agreement or child support order does not specify the remaining minor children’s child support, the court must determine the support (unless the parents agree).

Where “the language in the child support agreement is not clear as to the exact amount the child support is to be reduced by upon a child’s emancipation….[the court must] hold an evidentiary hearing to determine the correct amount of arrearages and the appropriate reduction in child support payments” Lehman v. Department of Revenue, 946 So. 2d 1116 – Fla: Dist. Court of Appeals, 4th Dist. 2006

Other Child Expenses After Age 18 In Florida

A parent’s obligation for all other expenses beyond ordered (or to be ordered) child support ceases on the child’s 18^th birthday. This includes an adult child’s medical and college expenses.

“[T]he parent of an emancipated child is not liable for his child’s hospital and medical services” Ison v. Fla. Sanitarium & Benevolent Ass’n, 302 So.2d 200, 201-02 (Fla. 4th DCA 1974)

“[A] trial court may not order post-majority support simply because the child is in college and the divorced parent can afford to pay.” Grapin v. Grapin, 450 So. 2d 853, 854 (Fla. 1984)

Of course, parents are welcome to agree to support their children past their 18^th birthday.

“When parties to a dissolution proceeding agree to educate their child after the child reaches [the] age of majority, the agreement is valid and may be enforced by either party to the agreement.” Winset v. Fine, 565 So.2d 794, 795 (Fla. 3d DCA 1990)

“Even though most financially able parents willingly assist their adult children in obtaining a higher education, any duty to do so is a moral rather than a legal one, absent either a finding of legal dependence or a binding contractual agreement by the parent to pay such support.” Riera v. Riera, 86 So. 3d 1163 – Fla: Dist. Court of Appeals, 3rd Dist. 2012

Child Support in Florida Past Age 18 If The Child Is Disabled

“Historically in Florida the crucial question utilized by courts in determining whether child support is subject to termination deals with the dependency of the child, regardless of whether the child is a minor, emancipated, or an adult.” Doerrfeld v. Konz, 524 So. 2d 1115 – Fla: Dist. Court of Appeals, 2nd Dist. 1988

“Both the common law and statutory law impose upon a parent a duty of support for an adult dependent child who, because of mental or physical incapacity beginning prior to the child reaching majority, is unable to support herself.” Brown v. Brown, 714 So. 2d 475 – Fla: Dist. Court of Appeals, 5th Dist. 1998

Child support can continue “for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact” Fla. Stat. Sec. 743.07(2)

A “dissolution court has jurisdiction to consider a petition to extend child support for a dependent child past [their] eighteenth birthday when the petition was filed before the child reached majority.” PHAGAN EX REL. LDP v. McDuffee, Fla: Dist. Court of Appeals, 5th Dist. 2020 (emphasis mine)

If the child’s disability becomes apparent (or only addressed) after the child’s 18^th birthday, an independent petition for support must be filed.

When “the [parent] has fulfilled his child support obligation as adjudicated in the divorce decree, an independent action must be brought to adjudicate the father’s support obligation for an adult dependent child.  The circuit court is the proper court for such adjudication. Such cause of action belongs not…to the [other parent] (by way of a modification action) but rather belongs to the dependent person, who may bring the action in accordance with Rule 1.210(b), Florida Rules of Civil Procedure. Indeed, the mother, as well as the father, is a potential defendant in the support action.” Brown v. Brown, 714 So. 2d 475 – Fla: Dist. Court of Appeals, 5th Dist. 1998

Child Support Arrearages After A Child Turns 18

When a child turns 18, any child support owed for the years past…are still owed.

“Upon emancipation of a minor child, the support-dependent parent is not magically reimbursed for personal funds spent nor debts incurred due to nonpayment of child support. Hardships suffered by a family do not disappear. A family’s feelings of indignation from abandonment by the nonpaying parent or from past reliance on public assistance are not forgotten. Society’s interest in ensuring that a parent meets parental obligations must not be overlooked simply because the child has attained the age of majority. The support obligation does not cease; rather it remains unfulfilled. The nonpaying parent still owes the money…a judgment for support arrearages is enforceable by contempt proceedings after a child has reached the age of majority… emancipation does not extinguish a support-obligated parent’s responsibility to pay the past due support.” Gibson v. Bennett, 561 So. 2d 565 – Fla: Supreme Court 1990

While supporting a child probably never ends, child support definitely ends. If you would like to learn more about terminating child support at the right time, contact my Naples, Florida family law firm to speak with an experienced Florida divorce lawyer.

source https://divorceattorneynaplesfl.com/florida-child-support-after-age-18/