Relocation with Child After Divorce; How long does it take to get the Court’s decision to move?

If your matter is contested, the other parent can make you miss moving deadlines, and even lose that job offer you worked so hard to get.  Well, the Court will provide priority in setting your temporary and/or your final trial.

An evidentiary hearing or non-jury trial on a pleading seeking temporary or permanent relief filed under this section shall be accorded priority on the court’s calendar. If a motion seeking a temporary relocation is filed, absent good cause, the hearing must occur no later than 30 days after the motion for a temporary relocation is filed. If a notice to set the matter for a non-jury trial is filed, absent good cause, the non-jury trial must occur no later than 90 days after the notice is filed.

TIP:  When requesting your hearing time, you need to make sure to tell the judicial assistant that your hearing is a “relocation hearing” so they will provide you with priority.  It is also important to request enough time.  If you run out of time before you are about to present your evidence, you will lose precious time for your relocation because you will have to reschedule your hearing based on the Court’s schedule.

Relocation After Divorce; Parental relocation with a child by Agreement.

racine-family-law-300x199So, you have discussed with the other parent that you want to relocate with your child and to your surprise they are in agreement with your move.  What do you do next?  Do you move.  Will the Court accept your verbal agreement? 

You must put your agreement in writing and there are specific statutory terms you must include in your agreement and you must file the agreement with the Court to satisfy the relocation statute, even if you are in agreement.  WARNING: failure to put your agreement in writing and file with the Court can have serious consequences, if later the other parent decides to file for contempt and request return of the child(ren).

61.130001(a) If the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that: 1) Reflects consent to the relocation; 2) Defines an access or time-sharing schedule for the non-relocating parent and any other persons who are entitled to access or time-sharing; and 3) Describes, if necessary, any transportation arrangements related to access or time-sharing. (b) you may also need to request a Court to ratify said agreement (this can be done with or without a hearing).

DEFINITIONS

(a) “Child” means any person who is under the jurisdiction of a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act or is the subject of any order granting to a parent or other person any right to time-sharing, residential care, kinship, or custody, as provided under state law.

(b) “Court” means the circuit court in an original proceeding which has proper venue and jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, the circuit court in the county in which either parent and the child reside, or the circuit court in which the original action was adjudicated.

(c) “Other person” means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the child.

(d) “Parent” means any person so named by court order or express written agreement who is subject to court enforcement or a person reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child.

(e) “Relocation” means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.

RELOCATION – Can I move with my child?

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The Short answer is: Maybe.  The Relocation Statute 61.13001(e) defines relocation as:

“a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.”

To clarify, there are three factors to consider before triggering the relocation statute.  First, the statute must be triggered by a “relocation after the filing of a petition.” To simplify, you must have had a circuit court case either opened and pending or has the circuit court has issued a final order.   If you are married and move prior to the date of filing for divorce or paternity action (even if the father has signed the birth certificate), you have not triggered the relocation statute.  The date of filing is the triggering factor.  If you move after the date of filing of either a paternity or divorce petition, without permission from the other parent, you may be relocating in violation of the relocation statute.  If you have a court ordered parenting plan (temporary or permanent) and then move, you may be violating the relocation statute.  If you plan to move, contact an experienced relocation attorney for guidance prior to your move.

The other two triggering factors are “the number of miles” away you relocate AND “the amount of time you are gone from your residence.”  For your relocation to trigger the relocation statute, your move MUST be 50 miles from your residence (at the time of your last Court order) AND you are gone for a minimum of 60 days.  So, you would have to be relocated more than 50 miles, as the crow flies (in a straight line) for two (2) months before triggering a violation of the relocation statute.

Relocating is a difficult area of law and you should have an attorney who has experience litigating relocation matters.  Call me, I can help.  Mary A. Cosmo, Esq.

Shared Parenting-The Devil is in the Details

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Mary A. Cosmo, Esq. 239-851-4982

By Mary A. Cosmo, Esquire, Family Law Attorney ©, The enforceability of shared parental responsibility and contempt. ©

Time and again, I will meet with a prospective client who wants to hold the other parent in contempt for refusing to comply with their parenting plan because they cannot get the other parent to comply. Then, they tell me it’s the parenting responsibility part of their parenting plan that they are the most frustrated with because they cannot get the other parent to communicate about the child’s needs, doctor’s appointments, school events, or mental health issues.  Unfortunately, I am the bearer of bad news as I explain to them why contempt is not going to help them because their parenting plan responsibility merely tracks the statute’s wording.

“It is well established that a party cannot be sanctioned for contempt for violating a court directive or order which is not clear and definite as to how a party is to comply with the court’s command.[1]  For that reason, when a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order.”[2]  Moreover, because a finding of contempt must be based upon a violation of the clear terms of a court order, a provision which is merely inherent of a court’s order will not support a finding of contempt.[3]  While acts may have violated the ‘spirit’ or ‘intent’ of the court’s orders, a finding of contempt requires the violation of the letter of the order—not its spirit.  [4]   Cancino v. Cancino (Fla. App., 2019)

Shared parental responsibility is a “court-ordered relationship,”[5] and the requirements of that relationship must be stated explicitly to support a finding of contempt on the basis of a party’s willful refusal to follow.  The law also imposes upon the court (and those writing the agreements to be adopted by the court) the requirement to be explicit and precise in its commands if strict compliance is to be exacted in the form of a contempt sanction.[6]   Therefore, a vague provision that the parties “shall share parental responsibility for the children consistent with Florida Statute” fails to set forth a sufficiently precise command so as to “put the parties on notice of what they may or may not do.”[7]

We as attorneys and the Court should and can do better for our clients.  The majority of parenting plans that come across my desk focus on a detailed timesharing schedule. Typically, at the time of drafting the parties are more concerned with the child’s time or whose house they will be at. However, we seem to be blowing it big time when it comes to the most fundamental right of them all, the right to parent.  For the most part, the parenting responsibility clause or section is limited to a paragraph, which has no teeth for enforcement.  No enforceability is a major problem.

With a boilerplate clause that tracks the statute for parenting responsibility,[8] one thing is for certain, that filing for contempt will reassure the offending parent’s bad behavior is not contemptible and they are free to continue their bad behavior.   Parental responsibility in Florida is just as important as the timesharing part in the parenting plan, whereas boiler point language is not enough to make sure the other parent will comply.

It is important to discuss with your client the meaning and expectations of parenting responsibility and put clear and precise terms so that the parents know how to govern their relationship.  The Florida Legislature describes parental responsibilities through its public policy statement, “to encourage parents to share the rights and responsibilities, and joys, of childrearing.”[9]  However, it is up to the drafter to craft further defined expectations that are meaningful and can be enforced when noncompliance arises. It is especially important to articulate in a parenting plan how to “confer and jointly make decisions” when the parents already have a difficult time communicating with each other.

 

[1] Ross Dress for Less Va., Inc. v. Castro, 134 So. 3d 511, 523 (Fla. 3d DCA 2014); accord Smith v. State, 954 So. 2d 1191, 1194 (Fla. 3d DCA 2007) (“When a finding of contempt is based upon a violation of a court order, that order must be one which clearly and definitely makes the person aware of its command.”); Kranis v. Kranis, 313 So. 2d 135, 139 (Fla. 3d DCA 1975).

[2] Keitel v. Keitel, 716 So. 2d 842, 844 (Fla. 4th DCA 1998).

[3] Id. at 844 (“[I]mplied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt.”); see Wilcoxon v Moller, 132 So. 3d at 283 at 287 (A court cannot base contempt upon noncompliance with something an order does not say, and we will not read implications into an order to justify contempt).

[4] Reder v. Miller, 102 So. 3d 742, 744 (Fla. 2d DCA 2012).

[5] Section 61.046(17), Florida Statute.

[6] See Cooley v Moody, 884 So. 2d 144 at 145.

[7] Cancino v. Cancino (Fla. App., 2019).

[8] “It is in the best interests of the child(ren) that the parents confer and jointly make all major decisions affecting the welfare of the child(ren). Major decisions include, but are not limited to, decisions about the child(ren)’s education, healthcare, and other responsibilities unique to this family. Either parent may consent to mental health treatment for the child(ren).”

[9] Section 60.13 (2)(c)1, Florida Statute.

 

What happens to my 401k in a divorce?

cropped-capture.pngWhat happens to your 401k in a divorce depends on when your account was opened.  If your 401k account was in existence prior to the date of your marriage and if you are like most people, continued to contribute to this account during the marriage, your 401k may be part-non-marital and part-marital property.  On the other hand, if you had a 401k or similar account prior to the date of marriage and you never contributed any marital funds to that account, it will remain non-marital funds.  (Paycheck funds and any other funds paid to you from your physical efforts during your marriage is marital property).

How do I know how much of my 401k is marital and how much is non-marital?

To begin this analysis, you will need to gather your account statements.  Specifically, the statement that shows the account balance at on the date of marriage and the statement on the date your divorce was filed.  Once you have these two important documents, you will want to contact an experience divorce attorney to help you with the calculation.  In the end, the balance on the date your marriage is considered non-marital.  You are also entitled to receive any return on that amount based on market activity.  When you have calculated the amount of return on your non-marital portion, then you subtract the non-marital portion from the balance at the time of filing for divorce.

These calculations can get tricky so it is important that you speak with an attorney who can guide you through this process.  Remember you are not alone.  We have experienced attorneys that handle 401k, retirement accounts, IRA, investments in divorce matters.  It is a scary process, and nothing should be presumed.

We handle divorce, parenting, timesharing, child support, alimony, and many other related matters.  We have litigation attorneys ready to advocate for your family’s needs.

How to Calculate Child Support in Florida

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Child Support Guidelines

Child Support is based on the Florida Child Support Guidelines established by the Florida legislature.  Basically, your child support amount will be calculated according to Florida law.  To calculate the amount one party pays to the other, you will need both parties’ gross income subtract allowable deductions (Health insurance, daycare, involuntary retirement, and limited other deductions) then then Federal Tax is applied and deducted.  (Attorneys, Department of Revenue for Child Support Enforcement, and Courts have a program that does this tricky part).  Once you have the combined net amount (total combined incomed less allowable deductions and taxes).  You look up the total obligation on the chart provided in Statute 61.30 for the number of children you have.  The legislature has provided a chart that is the presumptive child support amount based on the total combined income of both parties.

Example:

 

Child SUpport snip

 

Your allocated obligation is based on the percentage on income to both parties combined income.  For example, if party A make $200.00 per month and party B makes $600.00 per month, your percentage of support is based on the same percentage: A=25% and B=75% of the total combined income (as if you were still together as a family unit).  If your total support obligation for one child is $190.00 per month, then Party A pays (25% of $800.00) $47.50 per month because their income is 25% of the total combined income of both parties; and, B pays (75% of $800.00) $142.50 per month because party B’s income is 75% of the parties total combined income.

If Party A has the majority timesharing then rather than paying $47.50 to the Party B, this amount is assume that Party A is already paying this amount for the child’s needs.  Party B then pays to Party A the remaining amount of $142.50 as stated in the calculations.

(Other factors added to this calculation are health insurance for the child and daycare expenses, which are also shared according to the parties combined income percentages and added to the support amount).

Florida does allow for another calculation to include timesharing for both parties is over 20%.  In theory, the law presumes both parties are supporting the child according to their respective timesharing allocations and factored into this calculation.  This can get complicated.

For child support questions you should contact an experienced child support attorney who can guide you through the confusing child support guidelines.  Mary A. Cosmo, Esquires, has successfully handled several child support cases.  Mary A. Cosmo, Esq., Ft. Myers Family Law Litigation Attorney.

GUARDIAN AD LITEM IN NON-DEPENDENCY CASES

cropped-orig_34453_080Attorney Mary A. Cosmo is now accepting appointments as a Guardian Ad Litem to your Dissolution/Paternity matter.  Children are often lost in the push-pull of a divorce or parenting plan creation/modification, especially when there is domestic violence or parental alienation.  It is hard to get the evidence of this type in when the Rules of Evidence get in the way.  However, pursuant to Fl. Stat. Sec. 61.401  In an action for dissolution of marriage or for the creation, approval, or modification of a parenting plan, if the court finds it is in the best interest of the child, the court may appoint a guardian ad litem to act as next friend of the child, investigator or evaluator, not as attorney or advocate

Giving your Party’s children a voice in a dissolution or paternity matter should not be limited by your Client’s Income.

  • Parties with total combined income under 50,000.00, fee will be a onetime $950.00; shall be due upon appointment. May be made in two separate payments of $475.00; the first is due upon appointment the second is due 30 days after the first payment.
  • Parties with a total combined income under 100,000.00, but more than 50,000.00, fee will be 2,298.00; and shall be due upon appointment. May be made in 3 payments of 766.00, with first payment due upon appointment, second payment is due 30 days after appointment; and the third payment is due 60 days after appointment.
  • Parties with a total combined income over 100,000.00, fee will be regularly hourly rate of $275.00; a retainer in the amount of 4,500.00, shall be due upon appointment and place in a trust account, which is drawn upon as incurred.

You may submit your Stipulation and Order to attorneycosmo@outlook.com.  Upon receipt of your Order, you will be contact by guardian to initiate appointment.

What are my rights as an unwed mother?

racine-family-law-300x199Being an unwed mother can be scary and you may have several questions; such as: What are my legal rights as a parent? What if I put the father’s name of the birth certificate? What can I do to protect my child? What can I do if the father does not return the child?

Under Florida Statute 744.301(1), The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.

This means the Mother has a superior right to “custody” of the child born out of wedlock until the an action is brought in Circuit Court to establish paternity (even if you already know who the Father is or if the Father is listed on the birth Certificate.

When the Father is listed on the birth certificate, it creates a presumption that the person listed is the biological Father. To establish or enforce a father’s natural rights, he MUST file an action for paternity in circuit court.

BUYER BEWARE – $60.00 DIVORCE ADVERTISMENTS

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YOU CAN GET THE SAME PAPERWORK FREE_FREE_FREE from the FLORIDA SUPREME COURT WEBSITE!!!!

In some cases going cheap may end up costing you a lot more in the end. Sure you can purchase a packet of papers from an “online non-lawyer service” that advertises you get “all the documents you will ever need” for $60.00.

BUYER BEWARE-the same papers you are purchasing for $60.00, YOU CAN GET FOR FREE at the Florida Supreme Court’s Website at http://www.flcourts.org/resources-and-services/family-courts/family-law-self-help-information/family-law-forms.stml#980. Plus, they have “simple” instructions. The same instructions that a Document Service can provide. THEY CANNOT PROVIDE LEGAL ADVICE!!!!

FREE FORMS: http://www.flcourts.org/resources-and-services/family-courts/family-law-self-help-information/family-law-forms.stml#980.

THE COURT FILING FEES ARE MORE THAN $60.00!

Let’s first look at the actual cost of filing your papers. In the 20th Circuit (Lee, Hendry, Glades, Collier, and Charlotte Counties), the Court filing fee for divorce is $408.00. If you have to serve the other party, add $10.00 for the Clerk’s Issuance of a Summons. Then, add the $40-50 fee that the Sheriff will charge you to have it served on the other party. Depending on your income and assets, you may be able to qualify for a fee waiver of some of the Court fees. Each County Clerk will have a form, ASK THE CLERK FOR A WAIVER FORM!

If you are still confused….Ask an Attorney for a FREE Consultation. There are attorneys that will work with you and help you through your difficult times.

Think about the Costs if you make a mistake in your paperwork…you could be waiving a right. Please seek the advice of an attorney BEFORE you decide to file. Divorce is already a difficult situation, do not make it worse.

For more information contact us at The Law Office of Mary A. Cosmo, Ft. Myers Attorney, practicing in Lee County.  We are now taking cases for civil litigation, small claims, family Law, and probate proceedings.  Call us today to see how affordable legal advise can be.

The Law Office of Mary A. Cosmo, 15050 Elderberry Lane, Suite 4-14, Ft. Myers Florida 33907.