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  • Changing Child Support Amount Due to Increase in Income?

    From Janet from Fleming Island, Clay County, Florida:

    If an ex has a commission only job however they have been there over a year and has had a substantial increase in his pay, how can I get the child support increased when some months they don’t make anything and some months makes over $70,000?

    Answer:

    According to the Florida statute below, child support is always modifiable as long as there is what is called a significant change in circumstances.

    Florida Statutes 61.30(b) The guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.

    Your ex getting a substantial increase in pay may qualify as a significant change.
    The modification process is usually quite simple since it is based on the Florida Statute guidelines and calculations are done based upon those guidelines. Many people worry that the accurate amount of child support will not get awarded due to the income of the other parent not being traceable. In your circumstances your ex’s income is traceable and you should not have any trouble getting it modified. Many people have jobs or own their own companies where their income varies month to month. When filling out the financial affidavit your ex should take an average monthly income based on a cumulative of a year overall.This way the average monthly income is a good representation of what the child support should be calculated from. So, whether he has a good month or bad month, the amount should be one which he can pay as long as he budgets his income correctly. Your ex’s increase in pay should benefit your daughter and allow you to do more for her financially.

  • Form for Travel – No Father on Birth Certificate

    From Iliana from Miami, Florida, Miami-Dade County:

    Hi, I need a form and some help. I want to take my son on a trip out of the country but they said I need a form. He is not on the birth certificate. Is there a form I can fill out or an example that I can get? Do I have to file it with the court? That seems crazy to me. Or is it just a paper I can get notarized? Thank you for your help.

    Answer:

    In order to answer your question, I would need a little more information. First of all, was there ever Paternity established with the court? Were you married and then divorced? Do you know where the father is? 

    If Paternity was established with the court then the Father had a DNA test and you probably have a parenting plan stating how out of country travel would be handled. Most people require that if one of the parents are to travel outside the county that both parents are in agreement. The form that you are referring to is a Parental Consent form which the father would sign stating that he gives permission for you to take the child out of the country without him. Take a look at the sample form on the AAA travel site that might fit your situation here

    The same scenario would apply if you were married and divorced. If you know where the Father is and can have him sign the form you will be good to go. If you do not know where the father is, or perhaps who the father is then him not being on the birth certificate is perfectly understandable. In that case, you would not be able to get his signature! If you do not have the ability to get his signature, you can attempt to state your special circumstances, but it is difficult to get them approved. Your best bet would be to get your sole custody established with the court. That way you will not need to get the Father’s permission.

  • Can’t Find Respondent to Divorce Petition

    From Alison Nicole Rasberry
    (Homosassa, Florida, Citrus County):

    I have been separated from my husband for a year. I have not moved from the state or county of marriage. We have a minor child together that he abandoned.
    How do I proceed with this divorce if I cannot locate him, so far I have been unable to?

    Answer:

    It is possible to finalize a divorce even if you cannot find your spouse. Many times I have clients call me and ask this exact question for multiple reasons.


    Some of the reasons are their spouse has left the country, the spouse has abandoned the family without contact or they have been living apart from one another for so long that they truly do not know the location of the spouse. You may or may not want to find your husband, but in order to finalize a divorce you will have to go through the steps that show you have done your due diligence to find him.

    The first thing I usually do for my clients is to contact my Private Investigator to do a preliminary skip trace just to see if an address pops up. I can help you do this with my private investigator, If an address is found, then an attempt to serve your husband can be made. Without an address, however, a different approach will be necessary. My Private Investigator then does what is called a Diligent Search. A Diligent Search covers an extensive list of requirements and has to show the court that all avenues have been covered to try to find the other spouse. See the Affidavit of Diligent Search form 12.913(c) to see the list and requirements. Often this can take a couple of months to complete.

    Once the Diligent Search is filed then the next step is to publish the legal action in a designated newspaper. The court clerk will provide you with a list of approved newspapers. The ad must run a total of 45 days. Once receipt of the ad is filed showing it has run the required amount of days you are then able to request a final hearing for divorce.

    There are portions that cannot be completed when using a missing spouse procedure with the divorce such as child support and alimony. But as long as all the court’s requirements have been met to attempt to find and notify your spouse, it is possible to get a Final Dissolution of Marriage.

  • Which Divorce Form: Father is not the Husband?

    From Ame from Century, Florida, Escambia County:

    Husband went to prison in 2002. We have not lived together in 13 years. I had 2 kids with other men, can I file divorce without property and children or do I have to file dissolution of marriage with children. We have no property assets or any ties to each other and he’s not my minor children’s father. I have paper from child support state of Florida stating he’s not the father. Can I file myself and how should I file myself I have 3 sets of divorce papers. Please help.

    Answer:

    First of all, yes you can file by yourself, it is called Pro Se. This is something that many people do successfully every day. As a Pro Se filer, however, the wading through the legal forms can be quite cumbersome.

    Since your children are not the biological children of your soon to be ex then you are required to file for a dissolution with children, assuming that your children were born during the marriage.  For more information on which divorce procedure to use, take a look at this Florida divorce forms page. You will have to make sure that it is clear that the children are not his biological kids though.

    On the financial affidavit, I have found it easier to put children’s expenses in an ‘other’ category so that it doesn’t trigger a conflict with the dissolution petition. It wasn’t clear if your Husband is still in prison or not. If he is still in prison, serving him the papers will be quite easy, but sometimes takes a little longer since your process server may need to make an appointment with the security of the prison. If he is not in prison, it will be very important that you know where he lives in order to serve him.

    The best scenario, however, would be to communicate with him directly so that you can file together, have all the documents signed in agreement and get the final judgment of dissolution very quickly.

  • Avoiding Mediation Hearing in Modification of Custody Case

    From Anonymous from Florida:

    Modification of custody was filed six months ago. Father asked for sole custody because mother married sex offender. According to original custody, parents must first seek mediation. Mother has canceled several mediation appointments. It is felt she is stalling and/or refusing to cooperate. What next steps can be taken?

    Answer:

    I’m sure it is frustrating trying to get something taken care of in the court that is so important to you! The mother is probably stalling or trying not to cooperate, but there is a couple of things that you can try to move it along.

    Motions are a very good way to get the court involved in pushing certain issues. You can file a Motion to request that the judge order her to go to mediation. If she doesn’t cooperate with this order of the court then you can follow it up with a motion for contempt and enforcement

    In the meantime have you thought about the option of getting an emergency hearing to either get supervised visitation with the Mother or no visitation in a temporary order until the court is able to hear your case? If you are truly concerned about your children’s safety then you have a very good reason to request an emergency hearing. The temporary orders can at least give you peace of mind that your children will be safe during the time it will take to get this through the whole process. 

    It may also give the mother a little push to move things along too if she wants to be able to see her children.

  • Name Change for Grandchild

    From Charleen from Middleburg, Florida, Clay County:

    I have permanent custody of my granddaughter. The state of Georgia gave me permanent custody in 2007. I now live in the state of Florida and my granddaughter wants me to change her last name to mine.

    Answer:

    I’m not sure how long you have been living in Florida, but as long as you have been here for at least six months you can file a name change petition in Florida. The process for getting a minor’s name changed is not very difficult. As long as you have sole custody, you should have no problem.

    You stated that you have permanent custody, but are you the sole guardian or are the parents still involved? If you are sharing custody with the parents then you will have to get them to sign a consent form allowing the name change. As the Petitioner for a minor child’s name change, you will have to have your fingerprints taken in a manner approved by the Department of Law Enforcement and submitted for a state and national criminal history records check.

    This is done to ensure that the name change is in no way connected to any illegal activity. A hearing on the Petition cannot be requested until the Clerk of Court receives the results of the criminal history records check. If your granddaughter is no longer a minor, she will have to petition the court for the name change herself. She will then have to go through the fingerprinting and criminal background check as stated above.

    Your granddaughter wanting her name changed to your name is quite the compliment and speaks very highly about how you have raised her. Congrats!

  • What Divorce Paperwork to File?

    From Pam fromClearwater, Florida, Pinellas County:

    I am looking to file for divorce but am not sure which paperwork I need to file. I live in Florida and my husband lives in South Carolina. We have been separated for 4 1/2 years and we have an 18 year old son together. My son is living with his dad. This will be an uncontested divorce with no property.

    Answer:

    With your specific circumstances you may qualify for what is called a Simplified Dissolution. This will depend mostly on whether your son is still in high school or if he has graduated since he is 18 years old.

    A Simplified Dissolution can be done when there are no assets or liabilities to be divided, there are no minor children and if both parties attend the final hearing. If you cannot get your Husband to attend the final hearing you will then have to file for a regular Dissolution. This requires a couple more documents to complete the process, but there is no requirement for both spouses to attend a final hearing. Your husband can sign and file what is called an Answer and Waiver
    You can file in the state of Florida as long as one of you has lived here for the last 6 months, which you have, and as the Petitioner you will be able to attend the Hearing to finalize the divorce. Most counties are very similar in the exact documents, but some counties have local forms that are required in addition to the divorce papers required by the state

  • Allowed Vacation Time With Small Children

    From Sydney from Florida:

    I have a 1 year old and and 4 year old. My husband and I have just started the divorce process and he would like to take the two kids on vacation for 1-2 weeks. I have been a stay at home mom and he has traveled for work, seeing the children on a limited basis. He has not shared in parental responsibilities up until the divorce process started. My concern is that the children are too young to be taken from their mother/primary care taker from birth for that extended period of time. I would be OK for them leaving for a weekend but 1 to 2 weeks seems too long, especially for a 1 year old. Anything I can do to prevent this from happening? Or limit the vacation for just the weekend?

    Answer:

    It is very common for a parent to realize what they are losing when the process of divorce begins. This realization makes them take part in their children’s’ lives where they had taken this time for granted previously. I too have experienced this situation as my ex-husband travelled all the time and I was the stay at home mom so I understand your concern.

    I do believe though that the father wanting to have a vacation with your children is a good thing. The time frame of the vacation should be taken into consideration for the one year old. Some one year olds are fine to be with either parent as long as they have one of you. Some one year olds are completely attached to their mom and are not happy with just dad or vice versa. Your child’s comfort should be your first concern.
    If your one-year-old is happy spending time with his father then there shouldn’t be any problem with him taking him on vacation for one or two weeks. The four year old is probably completely fine with this time frame. If the one year old is not okay with being away from Mom, perhaps the father should be patient with that and only take the four year old this time? I would definitely try to communicate with the Father in a manner that is about the best interests of the children.

    Maybe a short trial vacation could help both of you know whether the longer time frame will work. As far as preventing him from taking them, unless he is abusive or neglectful I really don’t think that is the route to go, although you can express your concerns at the mediation hearing.

    However, the children need both parents in their lives and it is important for the father to be allowed to be with his children for longer than just a weekend. Florida courts follow the best interests doctrine when determining custody, visitation and time-sharing, so have a look at statute 61.13 for more information on this.

  • Divorce With 2 Kids, Can I Relocate?

    From Nicole from Florida:

    My situation is this: I am divorcing my husband of 7 years because he has been unfaithful to me our entire relationship. We have two small children 5 and 10 months old. I am and always have been a homemaker and full time caregiver for our children. We have no marital assets. We rent the house we are in now our car is leased etc. The only thing we share is our children. Who I have been with full time because of him working. When I came into the marriage I had a full time job of course, a credit score of 720 and a bran new leased Honda. After my first child was born I stopped working and the responsibility of keeping a full time job was put on my husband who’s track record of holding down a job is not so good. Due to his lazy work ethic and bad decision making combined with his terrible spending habits… We lost our home and went into foreclosure. My car got repossessed and I had to file for bankruptcy because all these things were in my name only! I am currently looking for a full time position and going back to work. We will have to put our children in daycare. I have not worked in awhile and am hoping to find something but will be starting all over again and at the bottom. It is going to be almost impossible for me to work f/t and pay for daycare f/t for 2 kids plus rent and car. My family is all in NY, they are willing to help. In NY I would have free daycare a place to live comfortably with my two kids for no cost. I could get a full time job easily and support them comfortably because I have the support of my family. They would be surrounded by loved ones and taken care of as they should be. Here it would be a struggle to make ends meet… Daily day to day. I know and realize that my husband is the father and has rights to his children and I would never say he can’t see them. My question is… Is it so cut and dry? You cant leave the state because they have a father here? I need his permission. Does my circumstance have any bearing? Can the child support be used to come see the children for flights. I want what’s best for my children. They are not used to any other lifestyle besides mom taking care of them. He is saying he wants them and that he would never let them leave. But it is to spite me because he has shown time and time again…. He can’t handle it. I don’t want my children to suffer. Please help in providing me some info on this. Do I have a chance at this argument?

    Answer:

    Your situation is a tough one. I’m glad to hear that you are not trying to make a decision based on finances alone and that you are concerned about your children’s father being in their lives. That being said, you have a valid concern over how to manage financially. 

    There are many different factors which need to be thought about before deciding to relocate and you have mentioned most of them. The term “best interests of the children” is what you need to pay most attention to in your decision making.
    Having both parents in your children’s lives is of course in the “best interests of the children,” but so is their parents’ financial stability. A lot of my customers with this type of decision have been helped by them writing down all the reasons to stay and all the reasons to move. Then they decide whether each reason is either in the best interests of the children or if it is simply an emotional choice. The reasons you gave of the accessibility of child care (your family) and a place to live at no cost allowing you to obtain a full time job and support your children are very strong arguments in your desire to move up North. The judge has the final say if you and your Husband cannot agree. Working something out to make sure that he will be able to see the children can only help you.

    It is probably better that you address this before you move though because if your husband fights it not only will it be disruptive for your children to have to move back if the judge orders, but the cost of handling a case in court in Florida while living in New York will definitely become a strain.

  • How to Get Credit for Child Support Arrearage

    From Anonymous from Florida:

    I lived with my children’s mother for seven years after a break up during which she was awarded a child support order. After reconciling, she never terminated the child support order, and when we broke up last year, I started receiving notices that I owe her child support for the past seven years that I lived with and supported her and our child. My tax records, car insurance and registration, and other documentation show that I lived in the same residence with and supported my child for the past seven years.
    How can I contest her claim, and get child support enforcement off my back for support I do not owe?

    Answer:

    If the child support was ordered through the court and you didn’t hear from child support enforcement until after the breakup then it probably wasn’t put through the child support enforcement department. Your ex has probably initiated the enforcement process. If so, you will have to get the facts corrected. In order to get the child support corrected you should probably do two different things.
    First, you will need to modify the original order of child support. When you file the modification of child support you can state all the specific circumstances that were significantly different from the time it was originally ordered. This is where you can state that you and your ex lived together and all expenses for the children were paid by you. One of the documents required by the court is called the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act Affidavit) where you list the addresses the children have lived and with what adults.

    This will enforce the fact that you both lived with the children at the same address. Second, you can then get a motion to correct the child support account showing that the arrearages for the seven years you lived together be removed.
    Once you have the modification this should be easier. It may take a while to get it all corrected, but with the proof and facts that you have it shouldn’t be very difficult.

  • Would Like to File for Alimony

    From Maris from Miami, Miami-Dade County, Florida:

    I have been married for eight years and it’s been a very rocky marriage. I became mentally ill because of his lies and cheating.
    I couldn’t believe that this man I trusted so much and gave my all to was doing all these things behind my back. I felt in love and gave him a legal status; unfortunately after he received his green card he started to change each day more and more for the worst.
    This marriage/relationship took a toll on me; I’ve been disabled for the past two years. My life has totally changed from when I met him. I had a good job, good income, good car… and most important I was mentally stable. I know in my heart that I was USED to obtain his residency and I feel it’s NOT FAIR. Even-though we do not have children or property together I would like to file for alimony. I was told that I cannot file for a Florida Simplified Dissolution of Marriage. What is the right form/s to use or what is the correct legal procedure to follow?

    Answer:

    I’m sorry to hear that you have gone through so much turmoil. Before, during and after your dissolution I would highly recommend you seek some sort of therapy/counseling to make sure you take care of yourself!

    The best thing you can do is take steps to move forward in a direction that is beneficial to you.In the very near future, alimony will be calculated similarly to how child support is calculated. Until that change is official the basis for a judge to order alimony is based on many different things see the Factors in Need and Ability to Pay.

    Some of these things are the standard of living established during the marriage, the duration of the marriage, the financial resources and earning capacity of each individual, and the physical and emotional condition of each person. As far as alimony goes, eight years of marriage is considered what some people refer to as the grey area. Considering your circumstances, you may be granted alimony as long as you show that you have relied on his income, have a need for the alimony and he has the ability to pay.

    I always recommend to my clients to ask for what you feel you need, if you don’t ask…you can’t receive! As far as the Simplified Dissolution of Marriage, you do not qualify because in order to do so you would have to have no assets or liabilities, no children, and not requesting any financial support.

    You more likely qualify for the regular dissolution of marriage procedure as outlined in this link. I hope you get what you need financially so that you can get back on your feet and become successful again!

  • Stepparent Adoption Consent Form & Biological Father

    From Taylor from Lakeland, Florida, Polk County:

    My husband and I have been married for just over 2 months but have been friends for many years. When I found out I was pregnant, my sons biological father abandoned us. My husband and I were dating throughout the entire pregnancy and have been together ever since then. Since he was not the biological father of my child I did not list him on the birth certificate. There is no father listed on my sons birth certificate. My son calls my husband his dad as he has filled those shoes for his whole life. I want to make if official and have my husband adopt my son. With there not being a father listed on the birth certificate is that going to make the adoption process easier? Do I still need a consent form?

    Answer:

    A stepparent adoption is a bit more involved than most think. Whenever a child is involved in the legal system, the court is most concerned with what is in the best interests of the child. Your first step will be to try to locate the biological father and if possible, have him sign a consent form. If consent is not obtainable, the situation you describe may be enough to claim abandonment under Florida adoption law. See section 63.089(3)and section 63.089(4) of the Florida Statutes

    My private investigator does a diligent search using what information you are able to provide such as his name, date of birth, last known address and any other information that will help find him. If the biological father is found then he must be served with the Stepparent Adoption Notice of Action. If the biological father is not found then the Petition is filed along with the Diligent Search and a Notice for Publication in the local paper of the last known address of the biological father.

    The ad will need to be placed and run the duration of the courts requirement. You will also need to search the Putative Father Registry maintained by the office of the Vital Statistics of the Department of Health. You can file a Motion and Order in the court that the judge will sign giving you the right to do this search. The Petition is actually a joint petition with you, the Mother, and your husband, the Stepparent. See  Stepparent Adoption Forms for more information.

    If you state in this petition the reasons why you want the adoption and confirm that all of the material and emotional needs of the child will be taken care of by the Stepparent, you will probably make it clear to the court your intentions. If the child owns any property then it will also need to be listed with the value of each item. If your son is older than 12 years of age you will also need to get his signature consenting to the adoption.

    After all of these steps have been successfully taken, then your husband should be able to adopt your son. This adoption will then terminate the parental rights of the biological father.

  • Modification of MSA: Relocation, Sole Custody & Supervised Visits

    From Janet from Pierson, Florida, Volusia County:

    I have filed an intent to relocate but I was told afterwards I need to fill out a T packet. I need to relocate but also need to change custody from shared to sole custody and supervised visits. Not sure which forms to include, there are so many and not sure if I need them all.

    I initially filed the intent to relocate by the advice of a paralegal and since my relocation was only to be for a year or two. I didn’t think he would contest it especially since he hasn’t made any visitation arrangements in over a year and I also don’t have time to do a modification before I have to leave. And I didn’t want to change the MSA in case he straightened up but 17-18 years later and he still the same he may never get straight. But he also agreed he would not force our son to come visit because our son is scared to go there, as he admitted he was living in a motel and having problems again with drugs, alcohol abuse and hasn’t gotten his mental illness under control, this was before I knew I had to relocate. Now I know and so does he. He wants me to send our son alone on a plane by himself at my expense now. If I have to fill out a T-packet containing a new parent plan then obviously I need to be specific since now he wants to contest it and explain why our son needs supervised visits. He also wants to testify he’s 14 years old.

    I know there has to be a form for that right? Our case is in Brevard County, FL which neither of us reside there anymore.

    Answer:

    In the process of relocating, a long-distance parenting plan will need to be established. Within any parenting plan all aspects of how the children will be cared for, how often each parent sees the children and many other factors are addressed.

    You may be able to request supervised visitation within the parenting plan. A modification of the parenting plan wiil most probably need to have a significant change in circumstances and it seems that your situation definitely qualifies. For more on this, see our Supervised Parenting Plan page.The main concern for the court is what is in the best interests of the child. If your child is in danger then, hopefully, the court will order supervised visitation.

    If your son wants to have his say there are two different scenarios that my clients have encountered. The most common is the court assigning a Guardian Ad Litem to speak with your child. The Guardian Ad Litem then speaks on the child’s behalf in court. See the Motion for Appointment of Guardian ad Litem, Form 12.942(a)for more information. 

    The other scenario is you request the child have his say via camera and then submitting it to the judge. The judge will need to approve this before you can submit it. See the Motion for Testimony and Attendance of Minor Children, Form 12.944 for more information. Either situation shows you that the goal is to not have a child in the courtroom so that they do not have any undue stress. If neither of you lives in the County which originally established the custody, visitation and child support then you may request a change of venue allowing you to file it in the court closer to you.

    As long as your ex doesn’t object to the change in location it should be fairly simple to get ordered by a judge. As far as sending your son alone on a plane, most airlines now a days require that a child be accompanied by an adult or that an additional fee be paid to have the airline assign someone to take extra care of the child while flying. Both before the flight and after, a parent must present identification in order for the airline to release the child.

  • Top 10 Reasons You Should Choose Mediation
    1. A Mediator is often chosen by couples who wish to maintain an amicable relationship with each other who is a neutral facilitator.
    2. The mediator, being completely impartial, has no professional, personal, or financial connections with the parties, their counsel, or the issues that need to be resolved.
    3. The cost and stress of your divorce can be significantly lowered through mediation by encouraging cooperative decision making. Resolution of a dispute through mediation in most cases will be less expensive than ordinary litigation because mediation narrows the focus of the parties to the facts at hand.
    4. Mediation can provide a confidential and private setting where you can decide and plan your family’s future.
    5. Mediation offers an alternative to traditional litigation and is a completely volunteer process.Participants have the ability to negotiate with each other in terms of alimony, and child support, and asset valuation and division.
    6. A mediator elicits all thoughts and concerns in a non-confrontational setting and can help level the playing field.
    7. Mediation allows the parties flexibility in negotiating alimony, asset evaluation and division, and child support.
    8. Mediation focuses on child custody issues, thereby assisting you in developing an appropriate parenting plan that will be in the best interest of the children, one that takes into consideration the children’s ages, school, activities, education, emotional and physical needs. For example, a schedule for a school aged child is going to be looked at differently than an infant.
    9. Parties are often in a better position to preserve existing relationships that might otherwise deteriorate under the strain of litigation, by resolving disputes quickly through mediation.
    10. By writing the legal divorce agreement and the court-required filings, the mediator can help consolidate expenses.
  • What Exactly Are Grounds For Divorce?

    The state of Florida is considered a “No Fault State” – which basically means that the reason why the marriage was broken is not so much the focus, but that the fact that it is broken. Most often the reason is that the marriage is “Irretrievably  Broken”. One or both of the parties can claim this, and that the relationship can no longer function as a marriage.

    The other acceptable grounds is that one of the spouses has been mentally incapacitated for at least three years. This involves having psychiatrists  testify that the spouse is incurable and there is no hope for recovery.

    Usually people tend to just assert that the marriage is irretrievably broken to avoid the process of proving mental incapacitation.

  • Trial Separation: The First Step To Divorce?

    There is no legal separation in Florida.

    If you are unsure about getting officially divorced, you can try separating and ask the court to establish parental time-sharing, child support, or other temporary relief. 

Where do I begin?

Once you have made the decision to divorce, or another legal process, contacting a legal document preparer can save you emotional, mental and financial stress which quite often accompanies these situations.