If you have children, they are the most important aspect of your divorce and very likely the most important part of your life. Like it or not, your ex will be involved in your life, because of the children, at least until they are 18 or graduate from high school.
Divorce and paternity law in Florida regarding custody has changed recently. Florida courts used to use the term “custody,” and made one parent the primary residential parent and the other parent the secondary residential parent. The primary residential parent was the parent the children lived with on a full-time basis. The secondary residential parent was the parent the children would visit on weekends or other times. The courts used to believe that having a primary residential parent was in the children’s best interests because it gave the children one residence that they knew as home. The home of the primary residential parent is where the children would stay on school nights. Back in the day, the primary residential parent was said to have “custody” of the children.
However, the law changed. The courts now are of the mind that it is in the best interests of the children if they have both a full-time mother and a full-time father involved in their lives. Time is now shared between the parents, and the courts try in many cases to make the time fairly close to equal. In some cases it may literally be 50/50. But splits like 60/40 or somewhere in that range are common. Depending on the circumstances, it is entirely possible for one parent to have 80% or more of the time as well. It just depends on the exact circumstances of your situation.
Now, instead of using the terms “custody,” “primary residential parent,” and “secondary residential parent,” the courts use new terms. Those new terms are timesharing and overnights.
Timesharing is the term used to describe the days or nights the children are with one parent versus the other. Overnights are literally who the children are with when they sleep overnight. When we talk numbers like 50/50 or 60/40 when it comes to timesharing, the numbers represent the percentage of overnights with one parent versus the other. For example, Jill may have the kids 60% of the overnights and Bill may have them 40% of the overnights. That would be a 60/40 split.
Timesharing, once it is agreed to by the parties or ordered by the judge, is explained in a document called a Parenting Plan. The Parenting Plan goes into tremendous detail as to how the timesharing works, who has the children on what days and at what times, where the drop offs and pick ups of the children take place, what will happen if someone is late with the children, how the holiday timesharing will be split, when and how the children may communicate with the other parent, and many other issues.
An issue related to timesharing is parental responsibility. Parental responsibility is the term used to describe decision-making regarding the children’s moral, educational, religious, and medical upbringing. In many cases, parental responsibility is shared by the parents and they are expected to make joint decisions regarding these issues. Sometimes a court can award one parent ultimate decision-making authority in the event of a disagreement between the parents. In very rare cases, one parent may have sole decision-making.
Now that you have the background on how timesharing (custody) works, let’s discuss some of the important legal issues surrounding this part of your case.
There are 10 points you need to know about timesharing:
1. The judge will base all of their decisions about timesharing on what is best for the children. In legal jargon, this is called “the best interests of the child.” Sometimes judges make rulings that you and I may think are certainly not best for the child. Even so, you can bet the judge will say the ruling is that way because it is best for the child. Erroneous rulings can be appealed to the appellate court. To ensure you have the best chance at a good outcome, you should have a Board Certified attorney such as Mr. Radeline represent you in court.
2. While there is a new consensus that closer to 50/50 is usually better, judges will not hesitate to make timesharing much more one-sided than that if given a good reason to do so. That means the fight in court over timesharing can be critical. Don’t go to court unprepared or unrepresented and expect that you will walk out with substantial time with your children.
3. The parent who prevails on temporary timesharing has a huge advantage when it comes to more permanent timesharing. In many cases, there is a hearing on temporary relief. Check out our blog for more information. The judge can award timesharing (or custody) on a temporary basis, fairly early in the divorce case. Keep in mind these cases can take months, and sometimes a year or more, to progress through the court system. It is called “temporary” because it continues in time until another ruling from the judge takes place, which normally takes place at the final hearing / trial. The judge at the trial will be influenced by who was awarded the majority of timesharing on a temporary basis. Also, the parent who has the majority of timesharing while the case is pending will have an opportunity to demonstrate through their actions that it is best for the minor children to continue to spend the majority of time with that parent. If the children are earning good grades in school, are getting to school on time, and are maintaining friendships with other children in the area and at their school, it may be an uphill (but not impossible) battle to get the judge to make a significant change in timesharing at the trial. Fight hard in the beginning on this, and it can pay dividends later.
4. It is very difficult to change (or modify) timesharing after the divorce case is over. During the divorce, timesharing decisions are made by the judge on the basis of what is in the best interests of the children. After the judge makes their decision, and after you case is over, there is a dramatically different legal standard that applies. After the case is over, if you want to modify timesharing you have to be able to prove that a substantial change in circumstances occurred after the case was finalized. That probably sounds like a bunch of legalese to you, so let me translate by using some examples.
Examples of things that are almost always a substantial change in circumstances:
a. the parent with the majority of the timesharing is very sick and cannot care for the children;
b. the parent with the majority of the timesharing was arrested twice in the last month for DUI;
c. the parent with the majority of the timesharing has recently become an alcoholic or recently began using drugs;
d. the new fiancé of the parent with the majority of the timesharing just moved in and that person has a history of sex offenses.
Examples of things that, standing alone, are usually never a substantial change in circumstances:
a. the divorce was finalized 2 months ago and one parent would like more time with the children;
b. one parent thinks their school district would be better, even though the children are doing well in their current school district.
The vast majority of situations that people speak to Mr. Radeline about fall into a gray area. They include ongoing communication problems between parents, the majority parent refusing to allow the child telephone contact with the other parent, concerns regarding drugs, alcohol, staying out all night, and leaving the children alone.
The best way to avoid having to try and modify your timesharing after the case is over is to maximize your timesharing in the original divorce case. An experienced divorce attorney like Mr. Radeline can assist you with all aspects of your case.
5. Timesharing affects child support. The number of overnights that the children spend with one parent versus the other parent will affect child support. If the parent with the lesser percentage of time has the children at least 20% of the time, this will factor into the child support calculation. And for every percentage point above 20% that the parent has, it will impact child support on a sliding scale basis. The more time someone has with their children (as set forth in the Parenting Plan), the less they pay in child support. It’s that simple.
Sometimes we see one parent who wants a bunch of timesharing just to decrease their child support obligation. Sometimes we see one parent who is willing to be flexible with their ex only to have their ex not use their timesharing and still reap the benefit of the child support reduction. Regardless of what circumstances you face, we can help you.
6. Winning the timesharing or custody fight can involve a lot of strategy. Sometimes, your spouse will go all out in an effort to obtain the vast majority of timesharing. That leaves you with no choice but to be aggressive to have a fair amount of time with your children. Other times, there may be very good reasons why it is essential for your children’s well-being for them to be with you most of the time rather than with your ex. That is another instance where you may want to use every available resource.
When you make the decision that a fight over custody is worth having, then you need to have a strategy. You should think about all of the people involved in your child’s life. This may include teaches, counselors, relatives, your friends, coaches, and others. Would any of them be able to say that your parenting skills are helpful to the child? Would any of them be able to talk about one or more times when your ex made your child late, or engaged in unreasonable behavior around the child? If so, you should write down the names of who may be helpful, and what they might be able to testify about.
Has you child been in counseling? If so, then the therapist can be a tremendous resource in your case. Therapists can be used in court to present evidence that otherwise would never be heard since your child will not be testifying in the case. If your child has not been in counseling, would it be beneficial? These are things to consider.
Sometimes a social investigation is ordered by the court as part of the custody fight. This is where a social investigator interviews you, your spouse, the children, and their teachers. They will also visit your home and your ex’s home. They then make recommendations to the court. Since they are usually court appointed, neither you nor your spouse will have any input as to who is chosen as the social investigator. Social investigations can pose significant risk in your case because you have no track record with the investigator. For that reason, it very important to have an overarching plan to achieve your custody and timesharing goals. Mr. Radeline can assist you in achieving your goals and safeguarding your child’s future.
7. Holiday timesharing can be just as contentious as regular timesharing. Over the years, we have had a number of clients who unfortunately experienced lots of drama during holidays and other important events. If your ex is prone to drama, then you should expect the worst when it comes to birthdays, summer vacations, Christmas break, and any other important time in your life. It is best to address these issues early on in the case. It may be wise to seek temporary relief regarding timesharing just so you can have some ground rules in place for the next several months. Otherwise, your ex could legally decide at any point that they are going to change what was already agreed to when it comes to your child’s birthday or that weekend when your parents are in town.
8. Keep a diary if you want to have the best chance of prevailing in court. Your trial may be months (sometimes over a year) away. If timesharing is an issue in the case, then you should document anything relevant that occurs regarding your children. Do they never have their homework done when your ex had them the night before? Write it down, noting the specifics and the date. Does your ex pick them up late half of the time? Write down every time it happens. Are your kids late to school when your ex is responsible for getting them to school on any particular day? That goes in the diary.
By keeping meticulous notes, you will allow us to have a lot of ammunition for use at trial. You will legally be able to jog your memory in the courtroom by referring to your diary. When in doubt, write it down in any organized, chronological manner.
9. Be a super parent. Do you want to have the majority of timesharing with your children? Then showcase to everyone just how great you are as a parent. Make sure you help with homework every day. Make sure you talk to them even on days when your ex has them. Make sure they get to school on time. Notice that none of these suggestions is to buy them lots of clothes at the mall, or to bribe them with trips to Disney World. Those things are okay if they are within your means, but being a super parent involves showcasing qualities that the judge will find favorable. By the way, this is not just putting on a show. You should really strive to be the best you can be even though you are going through the emotionally devastating time of divorce.
10. Until the divorce is filed, it’s like you’re living in the Wild West. You’re in a gray area of lawlessness until the divorce case is filed. That’s because both you and your spouse are the children’s parents, and either one of you has the legal right to have the children with you at any time you please. In other words, both of you are able to have 100% timesharing with the children. And if you live apart, you know that’s impossible. But without a divorce case in place, and without a court order regarding timesharing, either one of you can do whatever you please with the children. If it turns out one spouse was doing things that are not in the best interests of the children (not making them do homework, allowing them to skip school, not dropping them off at an agreed-upon time, etc.) then that can be used against that spouse in court during the divorce and can be a reason why that spouse should have less timesharing. But it wouldn’t be illegal for one spouse or the other, before the case is filed, to make the children move in with them, to move out of the area, and so forth. Most law enforcement agencies will tell you straight up that unless there is a court order to the contrary, it is a civil matter and must be handled in the divorce court.
As a general rule, the parent who has timesharing with the children can decide to do whatever they want with the timesharing. By that, we mean that if they want to leave the children with a babysitter while they go out on the town that is normally okay. If they want to just sit at home and watch movies and never leave the house, that is okay too. If they have to be at work the whole time, that is okay. So long as it does not pose a health, safety, or welfare threat to your children, your ex is in complete control over how they exercise their timesharing. If you want to be given first choice for the times your ex is not physically with the kids during their timesharing, you will need what is called a right of first refusal.
A right of first refusal is a clause in the Parenting Plan that allows one parent the option to have the children when the other parent cannot be with the children during their timesharing. For example, a right of first refusal could work like this: Jack has the boys tonight according to the Parenting Plan. However, he has to work overnight at his job because of a special project. So, he has asked his mother (the boys’ paternal grandmother) to watch them. But he has to give his ex, Jill, the right to have the boys tonight (even though it is not her night) since Jack will not personally be with the kids. If Jill accepts, then the boys are with her for the night and the rest of the week follows normal timesharing. If Jill declines, then Jack can let his mom (or whomever else he wants) to babysit the kids while he is at work. A right of first refusal must be requested at trial, or written into the settlement agreement, or else you will not have one as part of your timesharing schedule.
A new boyfriend or girlfriend can create a lot of drama. It is perfectly legal for you or your spouse to have a boyfriend or girlfriend while your divorce is pending. Many people choose not to do so for practical reasons, and that is a wise choice. Here is a question we get asked often: How can I keep my kids away from my ex’s new boyfriend or girlfriend? We have seen and heard it all. The new significant other is a drug user, alcoholic, a bad influence, a sex offender, has a criminal record, or treats their own children poorly. If there is a health, safety, or welfare risk to the children, and if the risk is a result of your ex’s new boyfriend or girlfriend, then you have a valid point. If they really are a convicted felon and continue to use heroin, then we should be filing an emergency motion in court to get the kids out of there. But many times emotions take over and there is not really a threat to the children. So be honest with yourself. If there really is a threat, let’s bring it up in court and by all means keep your children safe. If you are the person with a new significant other, and if your ex is threatening you or hauling you into court over perceived issues involving your children and your significant other, then you should aggressively defend yourself. No matter which side of the coin you find yourself on, we can help you and your children. Contact us today for a consultation with Board Certified divorce and custody attorney Charles D. Radeline.
If you or your ex has real problems, then those will need to be addressed in court. By real problems, I mean drug or alcohol abuse, a criminal history, a history of severe depression or attempted suicide, significant psychological disorders, domestic violence, or a physical disability that prevents them from adequately supervising the children during their timesharing. If you are the one with the issues, then we will need to proactively work to demonstrate that you have overcome them or are overcoming them. That is the best way to maximize time with your children. If your ex is the one with issues, we will work with you to document the problems and will develop a strategy to ensure your children’s safety and to maximize your time with the children. We have had cases where the parent on the other side of the case was ordered to undergo random drug screening for an extended period of time before unsupervised visitation was permitted. We have seen cases where a parent was given a graduated timesharing schedule to ensure the safety of the children. There are a number of different methods we can use to help ensure the safety of your children.
If your spouse is violent, then our foremost concern is the safety of you and your children. Mr. Radeline will work tirelessly to ensure any timesharing is supervised if your ex could possibly pose a threat to your children’s safety or to your safety. If necessary, we can pursue a restraining order either as part of your divorce case or as a stand-alone case. If at any time you fear for the safety of yourself or your children, call 911. After you and your children are in a safe place, call us.
Supervised visitation allows a parent to spend time with their children in a setting that ensures the safety of everyone involved. There are a limited number of supervised visitation centers in your area, and if a parent is awarded timesharing on a supervised basis it will most likely be for only a small number of hours per week. There is a charge assessed by the supervised visitation center for each visitation session. The supervised visitation ensures the safety of your children, and your safety. You will not need to conduct drop-offs and pick-ups anywhere other than the supervised visitation center. Supervised visitation is usually designed to ultimately allow unsupervised visitation after a good track record is demonstrated. However, showing up late, no call/no shows, and impolite or aggressive behavior at the visitation center can result in a judge decreasing or suspending visitation altogether.
Sometimes want a 50/50 timesharing split. Some people call this “rotating custody.” You will want to think long and hard about this before you decide to agree to it with your ex. Here are some points to consider:
a. Some judges are very reluctant to do 50/50 timesharing. Depending on who your judge is, you may find it is a difficult sell without an experienced attorney. The reason some judges are reluctant is because they believe the child needs one stable home during the school week. Remember, the judge wants to do what is best for the child, and it is the judge’s duty to ensure the best interests of the child are protected. Something close to 50/50, but not exactly 50/50, may work for a reluctant judge; it all depends.
b. There are some practical problems that arise. Is it going to be one week on, one week off? If so, then your child may face challenges in hanging out with their friends. Is each week going to be split? Then your child will be having some school nights in one home and other school nights in another home. This can result in performance problems in school. Do you and your ex live in the same neighborhood? If not, then one of you may be doing some significant driving to and from school. Keep all of these issues in mind.
c. 50/50 does not mean zero child support. Child support guidelines must be calculated and filed in every case, including those where there is an equal timesharing split. Many people think there will be zero child support with a 50/50 split. This is not necessarily true. The number of overnights with one parent versus another is one of several facts that go into child support calculations. For child support to come out to zero, there would have to be an even split of timesharing, both parents would have to have exactly the same income, and there would have to be no one paying for health insurance, child care, or non-covered medical, dental, and ocular expenses. Otherwise, there will be some child support owed from one parent to the other, notwithstanding the 50/50 split.
d. If you agree to 50/50, it will be difficult to get more timesharing later. As we discussed before, you will need to demonstrate a substantial change in circumstances in order to modify timesharing after it is set. By agreeing to 50/50, you are agreeing to ONLY 50% of the time. If you are okay with that now, and until your child is 18, then I am okay with that. But think long and hard about whether you may want additional time with your child once all the papers are signed and once the divorce is final. Because if there is even a small chance you will be unhappy with only 50% of the time, then you should seek more time now. There is no guarantee that you will be able to meet the “substantial change in circumstances” legal standard later on down the road.
Will I get alimony?
The answer depends on a number of factors, all set out in the article. One of the most important issues is whether you need alimony. This needs to be proven to the satisfaction of the judge in your case. We have many legal strategies to use to ensure that you can document why, and in what amount, you need alimony from your spouse. Another important issue is how long you have been married. There are several types of alimony. While temporary alimony is available regardless of how long you were married, other types of alimony are more likely the longer you were married, and less likely if your marriage was shorter in length. Other important factors include how much you earn, how much your spouse earns, what your educational level is, what your ex’s educational level is, if you have any physical disabilities, your age, and your spouse’s age. It is a complex issue that we can assist you with.
How can I get alimony?
To get alimony, you usually need to file for divorce. And you need to specifically request alimony in your divorce papers. To get a hearing on your alimony request, you must first have a mediation conference in your case. It can be very complicated. If you need alimony, you owe it to yourself to have a Board Certified divorce attorney expert assist you with the sometimes confusing legal process.
What is alimony?
Alimony is sometimes called spousal support. It is a payment from one ex spouse to the other ex spouse and it is designed to help equalize the standards of living post-divorce. It can come in one of several forms. It can be a monthly payment, or it can be in a lump sum.
What is spousal support?
Spousal support in Florida is another word for alimony.
Are alimony and spousal support different?
No, they are two terms for the same thing.
Will I have to pay alimony?
That is a simple question with a complex answer. It depends on a number of factors, including whether your ex really needs alimony. We have a number of techniques we use during the case to try and minimize the chances you will have to pay alimony, and if you do have to pay it, that it is in the smallest amount possible and for the least amount of time. Have you ever heard the term “garbage in, garbage out”? That’s an old computer term, but it applies here. If your ex is gaming the system and using false information about their expenses and income, we can demonstrate that to the judge
How to avoid paying alimony?
If your spouse is requesting it in the divorce, then it is on the table and you’re going to have to deal with it as one of the issues in the case. You avoid paying it by demonstrating in court, using evidence, that your spouse is not entitled to alimony. That can take quite a bit of legal strategy and skill. It’s not something we can answer here for you, because every case is different. If you are facing an alimony claim from your spouse, we can help.
Is there an online alimony calculator?
Unlike child support, there is no scientific formula or calculator that can request certain information and then calculate how much the monthly alimony payment will be in any given case. Part of the problem is that if you had the same exact circumstances and the same two spouses, you could get different alimony results from different judges in different courtrooms. How can that be? It is because alimony can be a huge gray area. Legalese says it is within the broad discretion of the trial court. Your judge will get to decide what they think is right and fair, within the factors that are discussed in the main article (length of marriage, need and ability to pay, standard of living, and the like). Because alimony can be a very important part of your case, and because it is especially difficult for non-lawyers to predict, we recommend you have an experienced divorce lawyer on your side. It is an investment, and not an expense, to have quality legal representation. We have options for every budget.
How much alimony will I get?
Like we just discussed, there is no specific formula for alimony. Outside of factors such as the length of the marriage, it will depend in large part of what your needs are and what your ex is able to pay. Note we said “able to pay” and not “willing to pay.” There is a difference. We can employ a number of tried and true strategies during the case to maximize the chances you are awarded alimony in an amount that will be significant in your life. Conversely, if you think your ex may be seeking alimony from you, we can use strategies to try and minimize the impact of the alimony claim.
What if my spouse is lying about how much they make?
As you know from reading this website, how much money your spouse makes is an important consideration regarding alimony. If your spouse is seeking alimony from you, and if they are underestimating how much they earn, then we can use a number of methods to prove how much they really are earning. If they are underemployed or unemployed, we will ask the judge to impute income to them. This means we will ask for the judge, for alimony calculation purposes, to assign them an income as if they were working in their field at an appropriate pay rate. Imputing income requires testimony about your ex’s past job history, and many times requires expert witness testimony. If you are seeking alimony from your spouse, and your spouse is underestimating how much they earn, we can use the same techniques to help prove they are really earning more than they have stated. Many people conveniently forget to include bonuses, overtime, side jobs, investment income, and gift income when disclosing their income in court. We can help make sure that we keep your spouse honest.
What if my spouse is lying about their expenses?
We see this happen often. Spouses can lie about their expenses to attempt to alter whether or not there is alimony, and in what amount. If your spouse is seeking alimony from you, they may artificially overestimate their expenses in an effort to show they need alimony from you. We have seen spouses claim the full rent when they have a roommate, overestimate their insurance costs, fudge numbers regarding gasoline and auto repairs, and double count how much they pay for certain monthly expenses. We can help you get to the bottom of what may appear to be fishy numbers. Conversely, if you are seeking alimony from your spouse, your ex may overstate their expenses in an effort to prove they cannot afford to pay you alimony. We have many techniques to cut right through those bogus expenses. Remember, every dollar in bogus expenses could be an additional dollar that could be used to pay you alimony each month. Imagine if there were hundreds or even thousands of dollars in inflated expenses. We have seen that happen often, and we can help you achieve a fair outcome in court.
Alimony isn’t fair!
We hear you. If you are the spouse who would potentially be paying alimony, it certainly can appear to be unfair. And many times it is not fair. Remember, it is a courthouse and not a “fair house.” So how do you fight back? You document everything, you review and challenge everything thrown at you by your spouse, and if at all possible you have an experienced Board Certified divorce attorney at your side.
How to Change My Alimony? Or, Can I get more alimony?
In many cases, after your case is concluded alimony may be modified. If you are the one paying alimony and you suffer a job loss, you would want to decrease or suspend your alimony payments. If you are receiving alimony, if you have additional support needs, and if your ex spouse is well-able to contribute to them, you would want to increase your alimony award. Whether it can or cannot be modified depends on your circumstances and on what your settlement documents and/or final judgment say about the issue. Remember, these may be written in legalese. We speak legalese. Let us help.
What can I do if I’m not getting my alimony?
If your ex has stopped paying the alimony they are court-ordered to pay, or if they are paying you a lesser amount, you can take them back to court. When you go back to court, you can ask for the past-due amount (plus interest!), future ongoing payments, and reimbursement of your court costs and attorney’s fees. Plus, if they still don’t comply, the judge can put them in jail until they do comply.
I can’t afford to keep paying alimony!
If you cannot afford to keep paying alimony, you should proactively seek a modification from the court. If you simply stop paying, or if you pay less than you should pay, then your ex will most likely file contempt charges against you. The judge has legal authority to put you in jail until you make things right financially with your ex, including interest and including paying your ex’s attorney’s fees. If you don’t like the idea of paying your ex, then paying you ex’s attorney would be even worse! Seriously, the judge will take a lot more kindly to you if you proactively try to address the situation in court rather than simply making your own rules. We can help you out.
What are some examples of things that a Judge would look at to determine if I am to pay or receive alimony?
The Courts consider the length of the marriage, the needs of the spouse requesting alimony, the ability of the other spouse to pay and each spouse’s earnings, earning capability, health, education, and other factors.
Why do I have to give my ex any money?
You only have to pay alimony if you agree to do so, or if you are ordered to do so by a Judge. If you are looking to win on the alimony issue you should have an experienced attorney assist you in the case.
Do I have to pay alimony if I have only been married for less than 2 years?
The likelihood of paying long-term alimony is small, but your spouse could request temporary alimony regardless of the length of the marriage.
What if my spouse and I both completed college and we both make the same amount of money.
Who would pay alimony?
While it is not a guarantee, spouses with similar educations, earnings and earning capabilities may not have any alimony awarded in the case.
If I have custody of our children, is it possible I could still have to pay alimony to my ex?
Yes, it is possible. Timesharing is not a factor the court will consider when it comes to a determination of alimony
Can my spouse or I seek alimony after a divorce has been finalized?
No, if you didn’t request alimony in the original case and the case is now over, you most likely have forever waived your ability to seek alimony.