In a divorce where children are involved, you will need what is called a Marital Settlement Agreement and a Parenting Plan. If you and the other party are able to agree to the terms, these documents will be presented to the court and included in the final judgment dissolving your marriage. After you are divorced, your Marital Settlement Agreement and Parenting Plan will serve as written guides for how you will divide money and parenting tasks. Alternatively, if you and the other party cannot agree the Judge will order the details of a divorce will be ordered by and Judge and the specifics of a Parenting Plan will be decided by the Judge.
The following will give you a brief outline of some of the elements involved in the process of a divorce.
Marital Settlement Agreement
A Marital Settlement Agreement lists the terms of the divorce and the relationship between the two spouses after the divorce, which covers equitable distribution, child custody, debt division, alimony and any other relevant issues related to the divorce. This agreement is non-modifiable at any time so it is very important that you know your rights and make the right decision knowing that this can not be changed.
Equitable distribution also known as property division, is the fair, but not necessarily equal, division of all marital property, assets, and debts. This complex concept is discussed in Section 61.075 of the Florida Statutes. Both spouses should be aware of what was owned and owed prior to the marriage, what has been acquired since the marriage, and what is currently owned and owed.
You and your spouse will decide how to divide or distribute all of your assets and debts so that you can achieve a financial divorce. Some of your assets include: your home, retirement accounts, bank accounts, investment accounts, possessions, businesses, insurance policies, cars, etc. Your liabilities will include debts – such as your student loans, credit card debts, car loans, mortgage debt, etc. If you and your spouse do not agree on how to divide your assets and debts the Judge will do this for you based on the criteria in the Section 61.075 of the Florida Statutes.
Alimony, also known as Spousal Support, is money or other property paid in fulfillment of a duty to support one’s spouse after a separation or divorce. If a divorcing couple does not agree to an alimony plan, a judge may order alimony. There are a number of factors to consider when deciding the question of alimony but the key factor will be the receiver’s need and the payor’s ability to pay.
(a) The standard of living established during the marriage
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the non-marital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage – including services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children they have in common.
(h) The tax treatment and consequences to both parties of any alimony award.
(i) All sources of income available to either party, including income available to either party through investments.
(j) Any other factor necessary to do equity and justice between the parties.
Once alimony has been ordered, it may (or may not) be modifiable later on. When discussing alimony, divorcing couples should discuss whether or not this alimony will be modifiable as to the duration (length of time) and/or as to the amount, and what circumstances would warrant a modification.
The principles in Section 61.29 of the Florida Statutes establish the public policy of the State of Florida in the creation of the child support guidelines. These principles are:
Each parent has a fundamental obligation to support his or her minor or legally dependent child
The guidelines schedule is based on the parent’s combined net income estimated to have been allocated to the child as if the parents and children were living in an intact household
The guidelines encourage fair and efficient settlement of support issues between parents and minimizes the need for litigation
Child support is calculated using a specific, statutory formula (as outlined in Section 61.30 of the Florida Statutes), is known as the Child Support Guidelines Worksheet. This formula utilizes each parent’s net income the number of overnights, the payment of childcare expenses, and the child’s health insurance to come to the correct amount of child support. In order to correctly calculate child support you should remember the following:
A parents’ net income is calculated by subtracting the amount the parent pays in (i) Federal, FICA and Medicare taxes; (ii) mandatory retirement contributions, (iii) mandatory union dues; (iv) health insurance coverage – for the parent only; (v) court-ordered child support from prior cases; and (vi) alimony, from the parent’s gross income.
The court may adjust or modify child support at any point in time. So as circumstances change either parent may return to court and request a modification of child support. The criteria the court uses to make this decision is outlined in Section 61.30(11) of the Florida Statutes. Child support terminates on a child’s 18th birthday unless the parents agree otherwise.
In this section, you and your spouse may include anything else that you agree is relevant including how you will handle the dependency tax exemption for your child, legal expenses, the purchase of life insurance, guidelines for future communications, or visits with the family dog.
A Parenting Plan is required in all cases involving time-sharing with minor child, even when time-sharing is not in dispute. The Parenting Plan must describe in adequate detail:
How the parties will share and be responsible for the daily tasks associated with the upbringing of the child
The time-sharing schedule arrangements that specify the time that the minor child will spend with each parent
A designation of who will be responsible for any and all forms of health care, school-related matters, including the address to be used for school-boundary determination, registration, and other activities
The methods and technologies that the parents will use to communicate with the child
In creating the Parenting Plan, all circumstances between the parents, including their historic relationship, domestic violence, and other factors must be taken into consideration. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interest of the particular minor child and the circumstances of that family, as listed in Section 61.13(3) of the Florida Statutes.
“That which is in the best interests of the minor child” are the primary consideration in the Parenting Plan. It’s hard to say what would be considered to be in the best interest of the child as each court and each judge is different. There are a few factors and circumstances that most judges consider to be in the children’s best interest:
Physical and emotional safety: Courts almost universally believe the child’s best interests are served when the child is placed in a physically and emotionally safe environment free from abuse and neglect.
Consistency: Most courts believe consistency is in a children’s best interests and do not favor moving the child from residing with one parent to residing with the other. They also typically do not favor disrupting the child’s schedule, school, and school activities, or moving the child away from friends and extracurricular activities
Both parents: Unless one parent has been found unable to care for the child, courts will almost always find that a child’s best interests are served when the child is able to build a relationship with both parents. In other words, it is a very rare move for a court to approve a parenting plan that significantly or completely cuts the child off from seeing the other parent.
Family ties: While perhaps not as important as the other factors, if the child has developed significant ties with extended family members like grandparents, aunts, and uncles, a court will likely take this into consideration when determining the child’s best interests. So, for example, a parenting plan that proposes to move a child to a different home and away from the grandparents when the child has a close, loving relationship with the grandparents and has seen them nearly every day of her life might not be approved by the court.
Once the Marital Settlement Agreement and The Parenting Plan have been developed and agreed upon by the parents, the documents will be filed in the court and a hearing will be set.
If you have questions or need advice, contact me today. I’m here for you. Call now to schedule your Consultation with me, Attorney Erin Morse.