Complex Family Law

Family Complex Litigation & Collaborative Group (“FCLC Group”) is devoted to the resolution of high-stakes, complex or complicated marital and family law cases, whether through the litigation process, the appellate process, mediation, settlement or the collaborative process.

Complex Family Law

Family Complex Litigation & Collaborative Group (“FCLC Group”) is devoted to the resolution of high-stakes, complex or complicated marital and family law cases, whether through the litigation process, the appellate process, mediation, settlement or the collaborative process.

Practice Areas

Relief in the trial court is not always the end of the case. A party may appeal the case to the appellate court for a review of the order or judgment issued by the trial court. Throughout his 36-year career, John Foster of FCLC Group has represented numerous clients before the Florida appellate courts, including the Florida Supreme Court. For a representative list of reported appellate cases handled by John, please read his biographical information on the FCLC Team page of this website. In short, FCLC Group is prepared to be your Orlando family law team from start to finish.

One of the important children issues facing parents in family law matters is the financial support of the children. Child support is not really considered a parental right—it is a right that belongs to the children. Indeed, child support is a dual “obligation” imposed by the law on all parents. This parental obligation (or, perhaps, better said, the children’s right to financial support) cannot be waived or contracted away by the parents. Under §61.13(1)(a), Florida Statutes, the court in an action for dissolution of marriage “may at any time order either or both parents who owe a duty of support to a child to pay support in accordance with the guidelines in s. 61.30.”

The guidelines at §61.30 include a table that sets forth the basic or presumptive amount that must be ordered by the courts for child support based upon the parents’ combined net monthly incomes and the number of children. Any allowable child care costs, costs of health insurance coverage for the children and costs of noncovered medical care, dental care and prescription medications for the children may be added to the basic child support obligation. And, then each parent’s percentage share of said child support amount is determined by dividing each parent’s net income by the combined net income, and then by multiplying each parent’s percentage share by the total child support amount.

Section 61.30 allows the courts to deviate from the presumptive or guideline amount by greater than 5% (either plus or minus) after consideration of a number of factors that are set forth in the statute.

In cases in which the children spend a substantial amount (20% or more) of overnights with each parent, the courts must adjust the paying parent’s child support obligation by applying a mathematical formula that is set forth in the statute. See §61.30(11)(b).

Under §61.1301, when a court orders child support, other than a temporary order, the court must enter a separate income deduction order. Child support payments made by immediate income deduction shall be paid through the State Disbursement Unit or local depository (the “SDU”). See §61.13(1)(d). If both parties request and the court finds that it is in the best interest of the child, the support payments may not be subject to immediate income deduction and any such payments may be ordered payable through the SDU or directly to the obligee (i.e., the parent receiving the child support payment). Id.

If a parent has received or is receiving public benefits, such as a monthly allotment for food under the Supplemental Nutrition Assistance Program (“SNAP”) or cash assistance under the Welfare Transition Program (“WT”), then the Department of Revenue may become involved to establish or enforce the other parent’s child support obligations through administrative or court proceedings.

In addition to divorce cases, child support may be ordered in other types of cases such as paternity cases, domestic violence cases, adoption matters or an action for child support unconnected with a dissolution of the marriage.

Alimony is one issue of several that arises in a marriage dissolution action. Unlike child support, there is no mathematical calculation in determining alimony.

Before the court can order any award of alimony, equitable distribution must take place. Once the assets have been equitably divided, the court has several choices concerning alimony. The court can order permanent periodic alimony, lump-sum alimony, bridge-the-gap alimony, rehabilitative alimony, no alimony at all, or a combination of different alimony types.

Alimony is typically used to provide support to the financially dependent spouse. Alimony is based first on need and ability to pay. Therefore, an award of alimony is not appropriate when there is no need for support by the requesting spouse or when there is no ability to pay by the other spouse. The court must consider various factors when it determines need, such as the parties’ earning ability, age, health, education, duration of marriage, standard of living enjoyed during the marriage, and the value of the parties’ properties.

For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.

Other factors the court may consider are what the paying spouse is capable of earning and whether the requesting spouse is able to contribute to his or her own support; whether the requesting spouse’s needs will be met through equitable distribution, and whether as a result of the marriage there was any harm done by the marriage itself to the requesting party’s ability to earn enough to support himself or herself.

To the extent necessary to protect an award of alimony, the court may require any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.

There was a significant change to alimony tax laws about which you should be aware. More specifically, as to alimony awarded on or after January 1, 2019, the alimony payments are no longer taxable to the recipient or deductible by the payor under the new tax law.

For alimony payments made pursuant to a final judgment entered before January 1, 2019, the payments may still be taxable to the recipient and deductible by the payor.

Simplified Dissolution of Marriage

A simplified dissolution of marriage is the least complicated type of divorce and, often, the least expensive. Per the Orange County Clerk of Courts, a married couple may obtain a divorce through the simplified dissolution procedure if all of the following statements are true about both spouses at the time that they jointly file a petition for simplified dissolution of marriage:

  • The couple has no minor or dependent children
  • The couple has no adopted children under 18 years of age
  • A spouse is not pregnant
  • At least one of the spouses has lived in Florida for the past six months
  • The couple has made arrangements for the division of property and the payment of their obligations
  • Both parties agree that the marriage is irretrievably broken
  • Both parties agree to use the simplified dissolution of marriage procedure
  • Both parties must be present at the hearing

Both parties are aware of the following:

  • After the dissolution becomes final, neither spouse has any right to expect money or support from the other, except for what is included in the property settlement agreement
  • By choosing the simplified dissolution procedure, both spouses give up certain legal rights that they would have if they used the regular dissolution procedure

If the above criteria cannot be met, you must file a regular petition for dissolution of marriage.

Dissolution of Marriage with No Children and No Property

A married couple may obtain a divorce using this process if they have no marital assets and/or marital liabilities, have no dependent children and neither spouse is pregnant.

At least one of the parties must have lived in Florida for six months prior to filing.

Dissolution of Marriage with No Children

A married couple may obtain a divorce using this process if they have marital assets and/or marital liabilities, but have no dependent children and neither spouse is pregnant.

At least one of the parties must have lived in Florida for six months prior to filing.

Dissolution of Marriage with Children

A married couple may obtain a divorce using this process if they have dependent or minor children together or if either spouse is pregnant.

At least one of the parties must have lived in Florida for six months prior to filing.

Uncontested Divorce

An uncontested divorce is when both parties agree on all of the terms of the divorce, yet they do not qualify for a simplified dissolution of marriage. These types of divorces take roughly three to four months once all the terms are agreed to and signed by the parties.

Contested Divorce

A contested divorce is the most complicated and can take anywhere from 18 to 24 months or longer, not including appeals. In almost every court in the state of Florida, mediation is required, except occasionally for cases involving domestic violence or abuse.

Divorce, also known as dissolution of marriage, is the process of terminating a marriage or marital union. Divorce requires the sanction of a court or other authority in a legal process, which may involve issues of equitable distribution of assets, child custody, alimony (spousal support), parental time-sharing, child support, and division of debt.

There are only two legal grounds for divorce in Florida:

  • The marriage is irretrievably broken; or
  • Mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three years.

When divorce is sought because the marriage is irretrievably broken and there is a minor child of the marriage, or the Respondent denies that the marriage is irretrievably broken in his/her Answer, the court may take any of the following actions:

  • Order either or both parties to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi, or any other person deemed qualified by the court and acceptable to the parties ordered to seek consultation;
  • Continue the proceedings for a reasonable length of time not to exceed three months, to allow the parties a chance to reconcile; or
  • Take such other action as may be in the best interest of the parties and the minor child(ren) of the marriage.

An injunction is a court order, sometimes called a “Restraining Order,” that directs a person not to have any contact with you. It is one legal means of helping to protect a person from threats or acts of violence by another person.

Domestic violence includes assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death to petitioner by any of petitioner’s family or household members.

Under §741.30(1)(a), Florida Statutes, a person who is either a victim of domestic violence or who has reasonable cause to believe that he or she is in imminent danger of becoming a victim of any act of domestic violence, may file a sworn petition for an injunction for protection against domestic violence.

Who can apply for a domestic violence injunction?

Florida Statute 741.30(1)(a) states that a “family or household member” who is the victim of domestic violence or who has “reasonable cause” to believe that he or she is in imminent danger of becoming the victim of domestic violence may file for an injunction for protection against domestic violence. The person filing for the injunction is known as the “petitioner.” This seemingly simple statement uses specific terms to precisely describe who may and who may not file for an injunction.

“Family or household member” includes individuals who are or were spouses, as well as individuals related by blood or marriage. The definition also includes people who were residing together in a single dwelling unit as if they were a family, or individuals who have a child in common. Part of the petition (that is, the application) for an injunction for protection against domestic violence requires the individual seeking the injunction to describe the nature of the relationship between the parties. While this does not mean that the victim and the aggressor must have been married, this does mean that, except in cases where the parties have a child in common, the two individuals must be either residing together presently or must have resided together in the past in the same single dwelling unit.

Next, the person must be a victim of domestic violence or one who has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. Domestic violence also includes actions such as:

  • Attempting to harm the petitioner, his or her family members, or individuals closely associated with the petitioner (such as close friends, work associates, etc.);
  • Threatening to kidnap, conceal, or harm the petitioner’s children;
  • Intentionally injuring or killing the petitioner’s pet;
  • Using, or threatening to use, dangerous weapons like guns and knives;
  • A criminal history involving violence or threats of violence;
  • If another state or jurisdiction had previously issued a domestic violence injunction (sometimes called an order of protection) against the person;
  • Destroying personal property belonging to the petitioner; or
  • Other threatening or alarming behavior.

Click here for information on the summary judgment process in domestic violence cases.

Child custody, or what is now statutorily referred to as “time-sharing,” is the amount of time a parent shares with their child(ren), generally measured in overnights. It can be called visitation or custody, but in Florida the proper terminology is time-sharing, and it should be reflected in a written parenting plan that includes a time-sharing schedule.

In a Florida divorce or child custody case, the judge must consider the child(ren)’s best interests when deciding how time-sharing will be allocated amongst the parents. See Florida Statute 61.13 (2020). Florida custody law does not give any preference to mothers or fathers when determining child custody matters. In other words, there is currently no presumption in favor of either the mother or father. Each case must be decided based upon the circumstances of each unique family after consideration of the best-interest factors set forth in s. 61.13, Florida Statutes.

A child’s best interests must be the primary consideration to any child custody decision in Florida. Judges expect parents to put the needs of their children first, before their own. A court will consider the extent to which each parent has demonstrated an ability and desire to meet a child’s developmental needs and be involved in the child’s life. Specifically, the following factors are relevant to a child’s best interests in Florida:

  • each parent’s ability to meet the child’s needs
  • each parent’s physical and mental health
  • each parent’s moral fitness
  • each parent’s ability to provide the child with a consistent routine
  • geographic viability of the parenting plan, specifically the amount of travel it would take to honor the time-sharing schedule
  • child’s adjustment to home and community
  • reasonable preference of the child if of sufficient age and understanding
  • evidence of domestic violence, if any
  • each parent’s ability to provide a safe and stable environment for the child
  • the child’s developmental age, needs, and abilities, and
  • any other relevant factor.

If a child’s safety is at issue, a judge may order supervised time-sharing or suspend contact and time-sharing provided that the steps are put into place for reuniting the offending parent and the child(ren). A safety-focused parenting plan may be established if necessary for the child(ren)’s safety.

Moral Fitness

Florida’s custody laws require a judge to assess each parent’s moral fitness when determining a child’s best interests. “Moral fitness” generally refers to circumstances that might affect a child’s moral and ethical development—for example, substance abuse, frequent casual relationships with multiple partners, verbal abuse, violence, or illegal behavior.

Whether or not a court might consider an adulterous parent’s behavior during the marriage would depend upon whether such behavior had a significant negative impact upon the child. A parent’s time-sharing may be impacted if he or she provides false evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect against the other parent in a custody case.

Parents are expected to protect a child from the stress of divorce, including refraining from making disparaging comments about the other parent in front of the child.

Once a parenting plan or time-sharing schedule is established, the schedule may be changed or modified only if there is showing of a substantial, material, and unanticipated change in circumstances that the requested modification is in the best interests of the child(ren).

The paternity statute for Florida is found at Chapter 742 of the Florida Statutes. This statute deals with the establishment and disestablishment of parental rights and responsibilities for children born out of wedlock. Currently, the statute has a gap for matters involving a “quasi-marital child”, who is a child born during an intact marriage but the biological father is not the mother’s husband. In other words, a quasi-marital child is born during wedlock; however, the child’s biological father is not the married mother’s husband. In such matters, the common law has created a rebuttable presumption that the mother’s husband is the child’s legal father. See Kendrick v. Everheart, 390 So.2d 53 (Fla. 1980); Fernandez v. McKenney, 776 So.2d 1118 (Fla. 5th DCA 2001). This presumption has led to many disputed cases between the biological father and the “legal” father involving parental rights and responsibilities. And, these cases proceed in somewhat of a rudderless fashion through a judicial system that has been given no legislative guidance. Indeed, as was observed by the 1st DCA in 2010, “Cases involving children are never easy, and cases involving ‘quasi-marital children’ are particularly complicated because they ‘present major public policy issues that are difficult, if not impossible, to address with the case law method.’” Nevitt v. Bonomo, 53 So.3d 1078, 1084 (Fla. 1st DCA 2010). Before then, in a well-reasoned concurring decision, Judge Winifred Sharp of the 5th DCA wrote: “I have sympathy for trial judges in such cases, because the ‘law’ is not clear. As Judge Altenbernd [of the 2nd DCA] has cogently observed, the advent of genetically accurate testing for paternity has partially ‘broken the back’ of the common law presumption [that the husband is the father] for children born while a mother and her husband are married.” Fernandez v. McKenney, 776 So.2d at 1119. More recently, the 2nd DCA directly addressed the need for legislative action when it stated, in pertinent part, “…because similar circumstances could arise in other cases, the legislature may choose to readdress the issue of a biological father’s right to establish paternity where the child is conceived and born during an intact marriage to another man.” C.G. v. J.R. and J.R., 130 So.3d 776, 782 (Fla. 2d DCA 2014). Finally, when it comes to the need for legislative action, please read Chris W. Altenbernd, Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls for Statutory Reform, 26 Fla.St.U. Law Review 219 (Winter 1997) (the title says it all).

 

Collaborative Process

For 36 years, John Foster has assisted clients in the resolution of their cases through the litigation process and trials, mediation and settlement, and appeals. Additionally, John completed the Collaborative Law training program at Barry Law School, and he is well-able to make the paradigm shift necessary for the successful resolution of family law cases through the Collaborative Process. Indeed, John has assisted numerous clients in successfully resolving their cases through the Collaborative Process. John Foster and the Team at FCLC Group stand prepared to assist each client in seeking a resolution that serves the best
interests of our clients and the minor children.

FCLC Icon Dark

Commitment to Collaborative

Prior to the commencement of the Collaborative Process, both parties and their respective lawyers sign participation agreements which prohibit any litigation from taking place during the Collaborative Process.  This prohibition is sometimes the incentive needed for parties to see the Collaborative Process through to the end and to the successful resolution of their case. In the rare instance that the Collaborative Process is unsuccessful, the lawyers for the parties can not represent them in litigation and each party must secure new counsel to litigate the case.

FCLC Icon Child

Parenting Plan Issues

Often, disputes over time sharing schedules and other issues in parenting plans are the most contentious and costly aspects of divorce cases.  As with financial issues, the parties agree to a neutral professional, typically a psychologist. This neutral is trained and experienced in dealing with matters that pertain to the best interests of children. Thus, he or she is typically able to assist the parties in drafting a parenting plan that serves the best interests of their children. This diffuses conflict amongst the parents and helps focus the attention on the children.

FCLC Icon Pie

Financial Issues

In the Collaborative Process, a neutral financial professional is appointed by the parties to review and analyze the parties’ financial situation.  This typically leads to less conflict in the discovery process and sets reasonable financial expectations for the parties.

FCLC Icon Money

 Costs of  Collaborative

One of the goals of the collaborative process is to minimize the overall costs by creating an environment and process more conducive to a prompt, efficient and amicable resolution than the litigation process. By avoiding formal discovery, motions, hearings, trials and other aspects of a contentious litigation process, significant cost savings may be achieved.

Practice Areas

Relief in the trial court is not always the end of the case. A party may appeal the case to the appellate court for a review of the order or judgment issued by the trial court. Throughout his 36-year career, John Foster of FCLC Group has represented numerous clients before the Florida appellate courts, including the Florida Supreme Court. For a representative list of reported appellate cases handled by John, please read his biographical information on the FCLC Team page of this website. In short, FCLC Group is prepared to be your Orlando family law team from start to finish.

One of the important children issues facing parents in family law matters is the financial support of the children. Child support is not really considered a parental right—it is a right that belongs to the children. Indeed, child support is a dual “obligation” imposed by the law on all parents. This parental obligation (or, perhaps, better said, the children’s right to financial support) cannot be waived or contracted away by the parents. Under §61.13(1)(a), Florida Statutes, the court in an action for dissolution of marriage “may at any time order either or both parents who owe a duty of support to a child to pay support in accordance with the guidelines in s. 61.30.”

The guidelines at §61.30 include a table that sets forth the basic or presumptive amount that must be ordered by the courts for child support based upon the parents’ combined net monthly incomes and the number of children. Any allowable child care costs, costs of health insurance coverage for the children and costs of noncovered medical care, dental care and prescription medications for the children may be added to the basic child support obligation. And, then each parent’s percentage share of said child support amount is determined by dividing each parent’s net income by the combined net income, and then by multiplying each parent’s percentage share by the total child support amount.

Section 61.30 allows the courts to deviate from the presumptive or guideline amount by greater than 5% (either plus or minus) after consideration of a number of factors that are set forth in the statute.

In cases in which the children spend a substantial amount (20% or more) of overnights with each parent, the courts must adjust the paying parent’s child support obligation by applying a mathematical formula that is set forth in the statute. See §61.30(11)(b).

Under §61.1301, when a court orders child support, other than a temporary order, the court must enter a separate income deduction order. Child support payments made by immediate income deduction shall be paid through the State Disbursement Unit or local depository (the “SDU”). See §61.13(1)(d). If both parties request and the court finds that it is in the best interest of the child, the support payments may not be subject to immediate income deduction and any such payments may be ordered payable through the SDU or directly to the obligee (i.e., the parent receiving the child support payment). Id.

If a parent has received or is receiving public benefits, such as a monthly allotment for food under the Supplemental Nutrition Assistance Program (“SNAP”) or cash assistance under the Welfare Transition Program (“WT”), then the Department of Revenue may become involved to establish or enforce the other parent’s child support obligations through administrative or court proceedings.

In addition to divorce cases, child support may be ordered in other types of cases such as paternity cases, domestic violence cases, adoption matters or an action for child support unconnected with a dissolution of the marriage.

The paternity statute for Florida is found at Chapter 742 of the Florida Statutes. This statute deals with the establishment and disestablishment of parental rights and responsibilities for children born out of wedlock. Currently, the statute has a gap for matters involving a “quasi-marital child”, who is a child born during an intact marriage but the biological father is not the mother’s husband. In other words, a quasi-marital child is born during wedlock; however, the child’s biological father is not the married mother’s husband. In such matters, the common law has created a rebuttable presumption that the mother’s husband is the child’s legal father. See Kendrick v. Everheart, 390 So.2d 53 (Fla. 1980); Fernandez v. McKenney, 776 So.2d 1118 (Fla. 5th DCA 2001). This presumption has led to many disputed cases between the biological father and the “legal” father involving parental rights and responsibilities. And, these cases proceed in somewhat of a rudderless fashion through a judicial system that has been given no legislative guidance. Indeed, as was observed by the 1st DCA in 2010, “Cases involving children are never easy, and cases involving ‘quasi-marital children’ are particularly complicated because they ‘present major public policy issues that are difficult, if not impossible, to address with the case law method.’” Nevitt v. Bonomo, 53 So.3d 1078, 1084 (Fla. 1st DCA 2010). Before then, in a well-reasoned concurring decision, Judge Winifred Sharp of the 5th DCA wrote: “I have sympathy for trial judges in such cases, because the ‘law’ is not clear. As Judge Altenbernd [of the 2nd DCA] has cogently observed, the advent of genetically accurate testing for paternity has partially ‘broken the back’ of the common law presumption [that the husband is the father] for children born while a mother and her husband are married.” Fernandez v. McKenney, 776 So.2d at 1119. More recently, the 2nd DCA directly addressed the need for legislative action when it stated, in pertinent part, “…because similar circumstances could arise in other cases, the legislature may choose to readdress the issue of a biological father’s right to establish paternity where the child is conceived and born during an intact marriage to another man.” C.G. v. J.R. and J.R., 130 So.3d 776, 782 (Fla. 2d DCA 2014). Finally, when it comes to the need for legislative action, please read Chris W. Altenbernd, Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls for Statutory Reform, 26 Fla.St.U. Law Review 219 (Winter 1997) (the title says it all).

 

Collaborative Process

For 36 years, John Foster has assisted clients in the resolution of their cases through the litigation process and trials, mediation and settlement, and appeals. Additionally, John completed the Collaborative Law training program at Barry Law School, and he is well-able to make the paradigm shift necessary for the successful resolution of family law cases through the Collaborative Process. Indeed, John has assisted numerous clients in successfully resolving their cases through the Collaborative Process. John Foster and the Team at FCLC Group stand prepared to assist each client in seeking a resolution that serves the best interests of our clients and the minor children.

FCLC Icon Dark

Commitment to Collaborative

Prior to the commencement of the Collaborative Process, both parties and their respective lawyers sign participation agreements which prohibit any litigation from taking place during the Collaborative Process.  This prohibition is sometimes the incentive needed for parties to see the Collaborative Process through to the end and to the successful resolution of their case. In the rare instance that the Collaborative Process is unsuccessful, the lawyers for the parties can not represent them in litigation and each party must secure new counsel to litigate the case.

FCLC Icon Child

Parenting Plan Issues

Often, disputes over time sharing schedules and other issues in parenting plans are the most contentious and costly aspects of divorce cases.  As with financial issues, the parties agree to a neutral professional, typically a psychologist. This neutral is trained and experienced in dealing with matters that pertain to the best interests of children. Thus, he or she is typically able to assist the parties in drafting a parenting plan that serves the best interests of their children. This diffuses conflict amongst the parents and helps focus the attention on the children.

FCLC Icon Pie

Financial Issues

In the Collaborative Process, a neutral financial professional is appointed by the parties to review and analyze the parties’ financial situation.  This typically leads to less conflict in the discovery process and sets reasonable financial expectations for the parties.

FCLC Icon Money

 Costs of  Collaborative

One of the goals of the collaborative process is to minimize the overall costs by creating an environment and process more conducive to a prompt, efficient and amicable resolution than the litigation process. By avoiding formal discovery, motions, hearings, trials and other aspects of a contentious litigation process, significant cost savings may be achieved.

LET’S WORK TOGETHER:
THE TEAM APPROACH

FCLC Group works as a Team. We strive to ensure that, for each case with which we become involved, our client is an active part of our Team.

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