Practice Areas - Orlando, Florida Divorce Lawyers
Florida family Law attorneys, Mark Troum and Richard Wallsh offer over 15 years experience representing clients in the following areas:
- Contested Divorces; Uncontested Divorces
- Child Support
- Alimony and Spousal Support
- Property Rights and Property Division
- Custody and Shared Parenting
- Visitation
- Accusations of Abuse
- Domestic Violence / Domestic Violence Injunctions
- Relocation and Custody
- Interstate Custody
- Post-Judgment Modifications and Enforcement of Final Judgments
- Annulment
- Fathers Rights
- Mothers Rights
- Mediation & Settlement
Contested vs. Uncontested Divorces
Within the State of Florida there are three types of divorces; simple dissolutions of marriage, contested dissolutions of marriage and uncontested dissolutions of marriage. This topic will discuss the difference between the last two.
Whether a dissolution of marriage is contested or uncontested depends on the parties themselves. If the Husband and Wife can agree as to each and every issue concerning their dissolution of marriage then they can proceed uncontested. If the parties cannot agree as to each and every issue then they must proceed with a contested dissolution of marriage.
Contained within any dissolution of marriage action there are various issues which must be either litigated or negotiated between the parties. Each case must be reviewed independently and handled on an individual basis. Issues such as custody, child support, visitation, health insurance, property distribution, alimony, the marital home, domestic violence, debt division and others may arise in any particular dissolution of marriage and must be resolved either by the Court or the parties. If the parties can agree as to how each and every issue in their case is to be decided then the parties can proceed with an uncontested dissolution of marriage. If the Husband and Wife cannot agree as to any particular issue or issues then the parties cannot proceed in an uncontested manner.
The procedure for an uncontested dissolution of marriage is different from one which is contested. An uncontested dissolution takes normally less time and is less expensive due to the parties having already agreed to all of the issues.
The procedure for a contested dissolution of marriage is more formal. The dissolution paperwork should be drafted by a qualified attorney and must be served upon the opposing spouse by a process server or the Sheriff's office. The responding spouse then has a period of time to respond to the paperwork. The contested issues concerning the dissolution of marriage are presented in this paperwork, called pleadings.
It may be helpful to discuss with an attorney whether your dissolution of marriage can be resolved in an uncontested manner. In some circumstances what may seem like a hopeless situation may in actuality be an easily resolved situation with the proper guidance and advice of an attorney who is skilled in this area of the law.
What may have been a simple case for your sister, friend or neighbor may not be as simple in your particular circumstances.
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Child Support
In 1987, the Florida Legislature enacted the child support guidelines for determining the amount of child support awards within the State of Florida. The guidelines were enacted so that a uniform formula would be used to calculate the amount of child support in child support litigation or modification of child support.
The child support guidelines sets forth items which must be used in the calculation of the child support amount. The statute is specific in defining what items are included in the parties' gross income; the allowable deductions to determine the amount of net monthly income of the party; and the formula to determine the amount of child support to be paid.
The child support guidelines were developed by the Florida Legislature with the normal needs of the minor child or children in mind. Any extraordinary needs of your particular minor child or children must be determined in addition to the amount of child support pursuant to the guidelines. Child care or daycare costs are also not a portion of the guideline amount of child support. Child care or daycare costs need to be calculated and are paid in addition to the amount supplied by the guidelines.
The laws dealing with the child support guidelines are very detailed and specific. There are many issues which need to be taken into account when calculating the amount of child support pursuant to the guidelines. The statute requires the Court to order child support in the amount set forth in the child support guidelines, however, it allows the Court some flexibility to deviate from the guidelines. When the Court orders child support in an amount different than the guideline amount, the Court, under most circumstances, is required to explain in its Order the reasons for the deviation.
It may be helpful to discuss this matter with a family law attorney who is familiar with this area of the law.
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Alimony and Spousal Support
In a dissolution of marriage proceeding one of the most frequently asked questions is whether I or my spouse is entitled to alimony. Either the Husband or the Wife may obtain a form of alimony in the State of Florida under the proper circumstances. Each party has the same rights in regard to the issue of alimony. The issue of whether a spouse is going to receive alimony depends on the individual facts of that particular case. What happens in one case may not happen in another.
There are several different types of alimony within the State of Florida. The alimony may be permanent in nature or it may be rehabilitative in nature. Rehabilitative alimony is used to allow the receiving spouse time to create the ability to be self supporting, either by the redevelopment of a previous skill, or by providing the training necessary to develop new skills. Rehabilitative alimony is for a limited length of time. Permanent alimony, on the other hand, is support which is paid to the spouse until the receiving spouse remarries or one of the spouses passes away. In either case, the Court may order the alimony payments to be made on a periodic basis or in lump sum or both.
To receive alimony payments a party must prove that they have a need for the alimony and that the paying spouse has the ability to pay alimony. The Court will take into account the Husband and Wife's standard of living while they were married to each other, the duration of the marriage, the age of the parties, and the physical and emotional health of each party. The financial resources of the parties, including both marital and the nonmarital assets will be taken into account. The distribution of the liabilities of the marriage also must be considered when determining the ability to pay and the needs of the spouses.
Each divorce is individual in nature when dealing with alimony issues. These issues can be complicated and in some cases the results of the litigation can be quite surprising. It will be helpful to discuss with an attorney whether the facts of your particular case warrant a request for alimony payments, whether rehabilitative or permanent in nature.
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Property Rights and Property Division
Within a dissolution of marriage case one of the most important issues is the distribution of the property of the Husband and Wife. The State of Florida distributes marital property and liabilities in a fair and equitable manner pursuant to the facts of each individual case. What happens in one particular case may not happen in another.
The first issue which the Judge will determine will be whether the assets and liabilities are marital or nonmarital in nature. If the asset or liability is marital, then the Court will distribute the property or debt in the proceeding. If the asset or liability is nonmarital, then under most circumstances, the party which brought the asset or liability into the marriage will continue to receive the property and or liability.
The issue of marital vs. nonmarital assets or liabilities can become quite complicated. It may require a tracing of the history of the property and how the property was acquired. There are also ways in which property which was brought into the marriage by one party can be transferred into marital property and, therefore, subject to distribution in the dissolution of marriage action. This procedure is used for all types of property including land, stocks, bonds, cash, homes, credit card debts, mortgages, pensions, retirement plans, loans, furniture, as well as others.
The Judge will look to many factors when distributing the property of the parties. Factors which the Court will consider include the contributions to the marriage by each spouse, contributions to the care and education of the children; the economic circumstances of the parties; the duration of the marriage; contributions of one spouse to the personal career or educational opportunity of the other spouse; the desirability of retaining any asset; the desirability of retaining the marital home as a residence for any dependent child of the marriage, and any other factors necessary to do justice between the parties.
Each dissolution of marriage is individual in nature. Property issues can be complicated and in some cases the results of the litigation can be quite surprising. It will be helpful to discuss with an attorney whether the property you and your spouse intend to divide is in fact a part of your marital estate and whether the proposed division is fair.
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Custody and Shared Parenting
The issues relating to custody and shared parenting are determined by a Court in a dissolution of marriage action or a paternity action. The issues of parental responsibility and residential custodian of the minor children are closely related, and are considered jointly by the Courts.
In the great majority of cases, parents have shared parental responsibility for the care, custody and control of a child. Shared parental responsibility is a relationship where both of the parents retain full parental rights and responsibilities with respect to their children. The parties should confer and discuss on such issues as schooling, health, religion, the child's activities and any other issue regarding the welfare of the minor child. These major decisions should be made jointly after a full discussion of each of the parent's concerns.
In a few instances a Court may decide that it is in the best interests of the minor child that the primary residential parent should have sole parental responsibility. Sole parental responsibility means that the responsibility over the minor child is given to only one parent. This parent has the right to make all major decisions regarding the minor child without having to confer with the other parent. The Court can determine that sole parental responsibility is in the best interests of the minor child and still award the non-residential parent visitation rights with the minor child.
Under the current laws of the State of Florida each parent has an equal right to be declared the primary residential custodian of the minor child. The Court will consider what is in the best interests and welfare of the minor child when it determines which parent will be designated the primary residential parent and which will be designated the secondary residential parent. The primary residential parent is the parent with whom the child resides the majority of time and returns to after each visitation with the secondary residential parent. The secondary residential parent has visitation rights.
In general, the Court may consider any factor that affects the welfare of the minor child in determining which parent will be the primary residential parent. The Law contains certain factors which the court must consider in determining the issues of shared parental responsibility and primary physical residence. Some of the factors include which parent is more likely to allow contact between the secondary residential parent and the child; the love, affection, and other emotional ties that exist between the parents and the child; the moral fitness of the parents; and the mental and physical health of the parents. Under certain circumstances, the reasonable preference of the minor child may be taken into consideration.
Issues concerning primary residential parentage and parental responsibility can be extremely complicated. These issues can be highly emotional and it is highly recommended that they should be discussed with an attorney who is familiar with this area of the law. A decision concerning primary residential parentage or parental responsibility which is made quickly can create future heart ache and unnecessary future litigation.
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Visitation
The issues of parental responsibility and residential custodian of the minor children are closely related, and are considered jointly by the Courts.
In the great majority of cases, parents have shared parental responsibility for the care, custody and control of a child. Shared parental responsibility is a relationship where both of the parents retain full parental rights and responsibilities with respect to their children. The parties should confer and discuss on such issues as schooling, health, religion, the child's activities and any other issue regarding the welfare of the minor child. These major decisions should be made jointly after a full discussion of each of the parent's concerns.
In a few instances a Court may decide that it is in the best interests of the minor child that the primary residential parent should have sole parental responsibility. Sole parental responsibility means that the responsibility over the minor child is given to only one parent. This parent has the right to make all major decisions regarding the minor child without having to confer with the other parent. The Court can determine that sole parental responsibility is in the best interests of the minor child and still award the non-residential parent visitation rights with the minor child.
Under the current laws of the State of Florida each parent has an equal right to be declared the primary residential custodian of the minor child. The Court will consider what is in the best interests and welfare of the minor child when it determines which parent will be designated the primary residential parent and which will be designated the secondary residential parent. The primary residential parent is the parent with whom the child resides the majority of time and returns to after each visitation with the secondary residential parent. The secondary residential parent has visitation rights.
In general, the Court may consider any factor that affects the welfare of the minor child in determining which parent will be the primary residential parent. The Law contains certain factors which the court must consider in determining the issues of shared parental responsibility and primary physical residence. Some of the factors include which parent is more likely to allow contact between the secondary residential parent and the child; the love, affection, and other emotional ties that exist between the parents and the child; the moral fitness of the parents; and the mental and physical health of the parents. Under certain circumstances, the reasonable preference of the minor child may be taken into consideration.
Issues concerning primary residential parentage and parental responsibility can be extremely complicated. These issues can be highly emotional and it is highly recommended that they should be discussed with an attorney who is familiar with this area of the law. A decision concerning primary residential parentage or parental responsibility which is made quickly can create future heart ache and unnecessary future litigation.
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What to do When You are Accused of Abuse
If you are accused of abuse by a family member or former family member then there are two concerns which must be raised. The first concern is whether you have been or will be served with a domestic violence injunction ordering you to vacate the premises and to have no contact with the alleged abused victim for a period of time. If you receive such an order you should obey the order. Obviously, the other person felt a need for court-ordered protection and does not want you to be with them. There is nothing to be gained by flaunting the law other than the strong possibility that you will be arrested and kept in the County Jail.
However, just because you should stay away and honor the order should not mean that you must accept the necessity for such an order. If you dispute the reasons for the order you may lawfully challenge the order in court. The order itself contains a date, time and place for you to appear. If you do not appear it will most likely become an order which will last. If you do appear, you have the right to bring legal counsel. You also have the right to a full hearing to resolve the issues.
Because of the vast number of domestic violence cases in the court system it is very common for judges to schedule numerous cases within a short period of time. They do not realistically allow sufficient time for each person to fully explore the necessity for the injunction and whether it should have been granted in the first place. Therefore, it is helpful if you request an additional date and time to appear when the court can allow sufficient time to resolve the issues that are raised.
In addition to the possibility of a domestic violence injunction there is also the possibility that you will be arrested. If you are arrested and taken to the county jail you should not resist. You should, however, attempt to obtain a bond which you can meet and contact an attorney who is experienced in both representation of family law issues and criminal law issues. Because the two areas inter-relate when abuse is alleged it is very helpful to be able to have one attorney who can answer your questions as to domestic court and criminal court at the same time.
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Domestic Violence/Domestic Injunctions
If you are accused of abuse by a family member or former family member then there are two concerns which must be raised. The first concern is whether you have been or will be served with a domestic violence injunction ordering you to vacate the premises and to have no contact with the alleged abused victim for a period of time. If you receive such an order you should obey the order. Obviously, the other person felt a need for court-ordered protection and does not want you to be with them. There is nothing to be gained by flaunting the law other than the strong possibility that you will be arrested and kept in the County Jail.
However, just because you should stay away and honor the order should not mean that you must accept the necessity for such an order. If you dispute the reasons for the order you may lawfully challenge the order in court. The order itself contains a date, time and place for you to appear. If you do not appear it will most likely become an order which will last. If you do appear, you have the right to bring legal counsel. You also have the right to a full hearing to resolve the issues.
Because of the vast number of domestic violence cases in the court system it is very common for judges to schedule numerous cases within a short period of time. They do not realistically allow sufficient time for each person to fully explore the necessity for the injunction and whether it should have been granted in the first place. Therefore, it is helpful if you request an additional date and time to appear when the court can allow sufficient time to resolve the issues that are raised.
In addition to the possibility of a domestic violence injunction there is also the possibility that you will be arrested. If you are arrested and taken to the county jail you should not resist. You should, however, attempt to obtain a bond which you can meet and contact an attorney who is experienced in both representation of family law issues and criminal law issues. Because the two areas inter-relate when abuse is alleged it is very helpful to be able to have one attorney who can answer your questions as to domestic court and criminal court at the same time.
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Relocation and Custody
The issues concerning whether a person can remove a child from the State of Florida can be very complex. Prior to the filing of a proceeding in which custody of a minor child is an issue, the removal of a child, with the criminal intent to conceal the child from the other parent, on a permanent basis, can be a violation of both state and federal criminal laws. The act of moving the children from the State of Florida could also adversely affect your position in a future custody hearing. If the State of Florida has jurisdiction over the children, the Court is not going to pleased that the children were removed from their jurisdiction.
After a parent wrongfully removes a child from the state, the Court has the authority to enter an emergency writ allowing the petitioning parent to have the children returned to Florida. This writ will normally be enforced by all other States and the children will be returned to the petitioning parent and the jurisdiction of the Court.
During the pendency of a proceeding affecting the custody of a minor, it is unlawful for any person, with the requisite criminal intent, to remove a minor child from the State of Florida, or to try to conceal the location of a minor, if that person has received notice of the pendency of the proceeding. The minor may only be removed from the State of Florida with the permission of the Court before whom the proceeding is pending. Any person who is convicted of a violation of this type is guilty of a felony, punishable by up to five (5) years in prison.
Once the proceeding is over and a primary residential parent has been established, it is possible for the primary residential parent to remove the child from the State of Florida. The Final Judgment entered by the Court should have a provision dealing with the removal of the minor children from the State. If the Final Judgment is silent on this issue, the primary residential parent may petition the Court for an Order allowing the parent and the minor child to move from the State. The Court will not allow the children to be moved if the reason for the removal is the vindictive desire to interfere with the visitation rights of the other parent.
Considering the possible criminal and serious custodial ramifications of removing the minor child from the State of Florida it is highly recommended that you consult with a qualified a Orlando family attorney prior to taking of any action on your part.
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Interstate Custody
When a custody dispute involves two parties each of whom reside in different States the question arises as which State has jurisdiction over the child custody matters. This is one of the more complicated issues in family law and essentially involves two different laws, the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act of 1980.
The two Acts have the same common purpose. They both promote cooperation between state courts so that a determination of custody is rendered in the state that can best decide the case. Each of the Acts intends to aid and promote the exchange of information and assistance between the states and to facilitate the enforcement of custody and visitation decrees of sister states.
The State of Florida has adopted a version of the Uniform Child Custody Jurisdiction Act into its laws. The Act discourages continuing custody controversies, deters abductions, and attempts to establish guidelines for custody disputes between states. The Act assures that litigation concerning the custody of a child ordinarily takes place in the state with which the child and the child's family have the closest connection and in which significant evidence concerning the child's care, protection, training, and personal relationships is most readily available.
The general intent of the Uniform Child Custody Jurisdiction Act is that the home state of the child should be the jurisdiction to hear and determine custody matters. If the state that is attempting to exercise jurisdiction is not the home state, exceptional circumstances must be alleged and proven to establish a basis for jurisdiction.
A Florida court must decline jurisdiction if, at the time the petition is filed, a proceeding concerning the custody of the minor child is currently pending in a court in another state that is exercising jurisdiction substantially in compliance with the Uniform Child Custody Jurisdictional Act.
It is highly recommended that you set a consultation with an attorney who is familiar with this area of the law if this issue arises in your particular case. Under certain circumstances hiring a Florida attorney may not be necessary. It may be more prudent to hire an attorney in the other state. However, under certain circumstances the other state attempting to exercise jurisdiction is not the appropriate jurisdiction and it will become necessary for you to have attorneys in both states in order to transfer the action to Florida.
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Post-Judgment Modifications & Enforcement of Final Judgments
Sometimes it is necessary to go back to court after the divorce or other family law case is over. If you want the judge to change the final judgment then you need to file a modification action. Common modification actions include changing custody or visitation with minor children or changing child support or alimony payments. Property and debt issues are not usually modifiable.
If you are not seeking to change the final judgment but want to enforce the judge's previous orders, then the court will hear either a contempt hearing and/or a motion to enforce. This can be a tricky area of law because courts do not have contempt powers in all situations (such as property issues) and even those areas subject to contempt most be resolved within the context of direct/indirect contempt powers and criminal/civil contempt powers.
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Annulment
As laws have been changed to make divorce or dissolution of marriage easier to obtain, it has become unnecessary in many cases to obtain annulments of marriage. Many people tend to forget that marriage arises out of contract law. When you get married you enter into a contract with your spouse. The law does not allow people to enter into a marriage contract when they are otherwise legally incapable of making such a contract. The best example would be a bigamist marriage. If a person is already married, that person no longer has the capacity to enter into a new marriage contract until the first marriage is dissolved by either death or divorce.
Therefore, if you were to marry someone who was still married to another, that marriage would be void from its beginning as no legal contract of marriage was ever recognized. This person would be entitled to an annulment of the marriage. An annulment of the marriage is saying that the marriage never existed from its very beginning. A dissolution of marriage or divorce is a recognition that at one time there was a lawful marriage contract but that the contract has been dissolved by law.
A person seeking annulment of marriage is entitled to the same types of support and rights that a person seeking a divorce would be entitled to.
If you feel that your marriage may be annulled it would be helpful to discuss the matter with an attorney. Even if your situation does not merit an annulment of the marriage you are still entitled to dissolve the marriage by filing for divorce.
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Fathers Rights
Florida law does not discriminate between the rights of legally recognized fathers and mothers. Florida law seeks to promote happy and healthy children by giving children meaningful contact and time with both parents. Shared parental responsibility is the norm and sole parental responsibility is reserved for only those cases where the court must protect the children. Perhaps we should stop focusing on "parents rights" and emphasize the best interest of the children.
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Mothers Rights
Florida law does not discriminate between the rights of legally recognized fathers and mothers. Florida law seeks to promote happy and healthy children by giving children meaningful contact and time with both parents. Shared parental responsibility is the norm and sole parental responsibility is reserved for only those cases where the court must protect the children. Perhaps we should stop focusing on "parents rights" and emphasize the best interest of the children.
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Mediation & Settlement
Settling a family law case outside of court is almost always the preferred method of resolving these deeply personal issues- it will save you time, money and aggravation. It will allow you to have a large say in the ultimate outcome as opposed to having a stranger (the judge) dictate how you and your family will live. And perhaps most important of all, it helps reduce the hard feelings and pain which usually accompany hostile family court litigation. That being said, some issues can not be resolved voluntarily and some people can not (or choose not to) be reasonable during this emotional time in their life.
Mediation is but a tool to help people resolve their differences through compromise and negotiation. The mediator may or may not be a lawyer but must be certified by the Florida Supreme Court as a family law mediator. The mediator can not represent you or the other party even if the mediator is a practicing family lawyer. He/she can not look out for your best interest. That is why many people choose to have an experienced family lawyer attend mediation with them to advise and guide them through the mediation process and help improve the chances of reaching a fair and equitable settlement upon which to set the foundation of their new life.
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