Kathy Macchione Leggett, LMHC • (863) 207-4402  Kathy@mccmediation.com

Mediation & Counseling Consultants

Helping you resolve divorce & custody issues without the courts.

Legal Issues and Florida Law

Many of our clients do not use attorneys during the divorce process.

We are all aware of the negative consequences that sometimes arise in a traditional attorney-driven divorce.  However, the traditional attorney-driven divorce model is still the right model for some families.  

An attorney is necessary when one spouse needs legal protection.  So, for example, if one spouse does not know what the marital assets are or how much the other spouse earns, he or she may want an attorney to investigate all of these details before agreeing to any financial arrangements.  Additionally, if one spouse feels intimidated as the result of domestic violence or other coercion, negotiating without a lawyer is not a good idea.

At Mediation & Counseling Consultants, inc., we do not and cannot offer legal advice, protect either spouse's legal rights, or investigate in order to find hidden assets.  If that is what you need you should seek guidance from an experienced attorney.  However, you may not need to retain legal counsel as long as both parties are confident that full financial disclosure is being made. 

Should either party need to supplement the mediation process by consulting with an attorney or CPA before or during mediation, we encourage you to do so. We also encourage all of our clients to consider the option of consulting with independent legal counsel and/or an independent CPA prior to signing any documents.  

Additionally, as you go through the mediation process you may find it helpful to read Chapter 61 of the Florida Statutes and/or consult with other experts such as a Forensic CPA, Tax Attorney, Business Appraiser/Valuator, Real Estate Appraiser, Real Estate Attorney, Antique and Collectible Appraiser, Financial Planner, Child Development Specialist, and/or a Psychologist or other mental health professional.

EQUITABLE DISTRIBUTION:

Dividing Your Assets and Debts. You will have to decide how to divide or distribute all of your assets and debts so that you can achieve a financially equitable divorce.  Your assets are your home, retirement accounts, bank 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.

FULL financial disclosure is key during this part of the mediation process. In order to negotiate and participate meaningfully in the mediation process, both spouses must be aware of and make disclosure regarding what you own, what you owe, what was owned prior to the marriage, and what has been acquired since the marriage. Before your divorce is final you will need to fill out a Family Law Financial Affidavit which will outline the financial details you discussed in mediation.  This form is provided in your Pre-Mediation Packet.

The mediator will encourage you to consult with your accountant before you decide how to divide your assets so that you and your spouse can consider future tax liabilities and other concerns.

For more detail on dividing your assets and liabilities, go to Florida Statutes 61.075. 

ALIMONY/SPOUSAL SUPPORT:   If you and your spouse agree to an alimony provision in your agreement you will also need negotiate if this alimony will be modifiable or non-modifiable and how it will be structured - as a temporary, lump sum, bridge-the-gap, rehabilitative, durational, or permanent periodic payment.

Alimony payments may be temporary, permanent, or in a lump sum. When discussing this issue the mediator may ask you to consider the needs of the spouse requesting the alimony as well as the ability of the other spouse to pay the alimony. Additionally, you will want to consider things like the standard of living established during your marriage, the length of your marriage, the contributions each of you made to the marriage, your ages, your physical and emotional conditions, and your financial resources.

The mediator may encourage you to consult with other professionals before making any decisions about alimony. Alimony payments may be modifiable later on so deciding to pay or receive alimony can have long-term consequences. Additionally, the IRS has rules and regulations that determine whether alimony is tax deductible or taxable so you should consult with your accountant before deciding what to do.

CHILD SUPPORT:   Child support is calculated using a prescribed formula based on your net incomes and the number of overnights the children spend with each of you.

Your mediator will calculate child support for you using your incomes, the cost of each parent's health insurance, the cost of your children's health insurance, the cost of work related child-care, and the number of nights that your children will spend with each parent.

Child support is based on the parents' combined net income. For purposes of child support, net income is calculated by subtracting the following from the parents' gross incomes:

  • Federal, FICA and Medicare taxes
    mandatory retirement and union dues
  • health insurance coverage - for the parent only
  • alimony payments; and court ordered child support from prior cases.

The parents' combined net incomes and each parent's percentage share of that income is then calculated. The child support guideline chart provides the minimum amount of child support, using the parent's combined net monthly income and number of children in the family. Support is calculated based on the number of overnights the children spend with each parent.

For more detail on the calculation of child support please go to Florida Statutes 61.30. 

CAN ONE OF US MOVE? - PARENT RELOCATION:

Florida Statutes 61.13001, specifically addresses what considerations are taken when a parent request to relocate with a minor child.

If the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that reflects consent to the relocation and defines an access or time-sharing schedule for the non-relocating parent and any other persons who are entitled to access or time-sharing.  The agreement must also describe any transportation arrangements related to access or time-sharing.

If the parents cannot agree, the court will make a determination based on how the relocation will affect the current schedule of contact, access, and time-sharing with the non-relocating parent or other person. In reaching its decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following:

(a)  The nature, quality, extent of involvement, and duration of the child's relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child's life.

(b)  The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.

(c)  The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.

(d)  The child's preference, taking into consideration the age and maturity of the child.

(e)  Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.

(f)  The reasons each parent or other person is seeking or opposing the relocation.

(g)  The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.

(h)  That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.

(i)  The career and other opportunities available to the objecting parent or other person if the relocation occurs.

(j)  A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

(k)  Any other factor affecting the best interest of the child or as set forth in s. 61.13.

BURDEN OF PROOF.--The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the non-relocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

ORDER REGARDING RELOCATION.--If relocation is approved:

(a)  The court may, in its discretion, order contact with the non-relocating parent or other person, including access, time-sharing, telephone, Internet, webcam, and other arrangements sufficient to ensure that the child has frequent, continuing, and meaningful contact with the non-relocating parent or other person, if contact is financially affordable and in the best interest of the child.

(b)  If applicable, the court shall specify how the transportation costs are to be allocated between the parents and other persons entitled to contact, access, and time-sharing and may adjust the child support award, as appropriate, considering the costs of transportation and the respective net incomes of the parents in accordance with the state child support guidelines schedule.