Family Law

Nicole Quattrocchi | | Categories: Family Law & Domestic Relations

Misconceptions about Divorce and Child Custody

Divorce is no easy process. The constant stress of losing a spouse, expensive fees associated with separation, and the impact it can have for your children can make a divorce a difficult time in one’s life.

One nightly debate with my father sparked our thoughts on divorce. Growing up as someone affected by separated parents and having a father who has gone through the process, our thoughts on the topic could not have been more different. As a child who is well experienced in field of divorced parents, as well as interning at the Quattro Firm, I had a much different input than that of my father. He thinks, like many other men, that the entire process is unjust because women are more heavily favored than men.

With 48 percent of marriages dissolving within 20 years, the chances a married couple may seek divorce is rather high. Additionally, the number of couples that have children and seek divorce is just as high. Therefore, it is important to remember not to put stress on them during the process. Mediation can be a method used which can be beneficial for emotional satisfaction, spousal relationships, and children’s needs. Children often experience more problems when parents remain in high-conflict marriages instead of splitting up. Staying together for the sake of one’s family may not be the best option in the long-term. Divorce is a breeding ground for conflict, however, it is imperative that the conflict does not interfere with children as some consequences may be irreversible.

Although divorce is not always the most appealable option, spending thousands of dollars on attorney fees, the realization that your family will no longer be the same, and the fear of change after separation, the long-term aspects may be the more profitable than staying in a marriage.

The longer the marriage lasts the more of a liability develops when a couple seeks divorce. The length of the marriage determines the amount of a spouse’s potential award in Florida. Under Florida Law, one’s spouse could be entitled to half of what was accumulated in the retirement fund during the length of marriage. Additionally, the chance of paying spousal support or alimony increases when a marriage lasts seven or more years. To combat the odds, Things prenuptial agreement before marriage or a post-nuptial agreement after the marriage can deal with the division of assets and alimony.

As mentioned, the financial burden that can potentially arise from divorce does not appease the process. And unlike alimony and retirement funds, child support cannot be waived in a prenuptial agreement. Child support is determined by the income of both spouses, the needs of the child, as well as how much timesharing each parent has with the child. Uncontested proceedings are an option for those looking to agree on basic terms of asset division, alimony and timesharing, but many people do not know that this is an option. Also, “uncontested” is not always possible with the degree of conflict between the parties.

When going through a custody battle, the judge is required to look at what the “child’s best interest[s]” are. Therefore, to determine custody, a judge cannot discriminate based on gender but rather come to the decision of who would provide better for the child based on their needs. Parents who necessarily “bring home the bacon”, are not favored by the judge any more than a stay-at-home parent would be. In fact, if one is able to provide a strong case for the child’s best interest, one may have a decent chance of being awarded physical custody or more timesharing. Children’s best interests include financial needs, emotional needs, stability of the parent, school districts, and much more.

As mentioned before, divorce is a breeding ground for conflict. Although things may begin amicably, situations are likely to change for the worse the more involved the couple gets in the process. Therefore, the “I don’t need a lawyer mentality” can be detrimental during separation to one’s assets and overall well-being. The consequences of saving a couple of thousands from attorney’s fees will become apparent when one does not have the proper representation for protection of one’s rights and perspective.

Therefore, I believe that when my father referred to women being more entitled to compensation from divorce, he failed to realize that hiring an attorney to represent you even in something as common as divorce, can drastically change the outcome. Most to all cases he presented were all scenarios in which only one spouse acquired an attorney, while the other did not.

Furthermore, societal norms are continuing to change, altering the course of divorces. Retrospectively, it may seem that women would have been awarded more than their fair share during the divorce, entitlement to half of their spouse’s pension and even alimony. Before the number of stay-at-home dads increased, women traditionally took on the role of homemaker. In most cases, women who are stay-at-home parents do not earn a livable income nor seek higher education. Due to this, it is understandable as to why a false preconceived notion about men getting the short end of the stick may have developed. However, now that the number of fathers staying home with their children has doubled in the past two decades, it may be more apparent that rewards of divorce are not gender specific.

“Culturally now, most parents do a little of both,” meaning men and women are expected to do more untraditional roles. Women can seek higher education and a more professional job and men can stay-at-home without being judged. Therefore, it will not be as uncommon for women to be paying men for child support as well as women paying alimony.

Personally, I believe misconceptions about divorce are created due to traditionalistic roles of the household. It would only make sense for a stay-at-home parent to be granted more timesharing with his/her children rather than the parent, who has a full-time job and is not present in his/her children’s everyday lives. It would only make sense for a woman to receive alimony from her former husband if she has not worked for ten plus years because he was providing for them. However, with gender roles changing in America, I also hope that misconceptions about divorce will change as well.

You May Think You’re the Daddy, But Legally, You’re Not. By: Shavonne Pierre

As an unmarried couple of a new baby you take pride in naming the baby and of course the father signing the birth certificate in most cases. As a new father or current father you need to know what it means when your name is or is not on your alleged child(rens) Birth Certificate. The father believes that in all sincerity that he has the same parental rights and parental responsibilities as the mother. Too often the statement “my name is on the Birth Certificate, so I have rights” is made. This myth is far from the truth.

In the State of Florida signing the Birth Certificate does NOT automatically give a father immediate parental rights and responsibilities or time-sharing. The signing of a Birth Certificate merely establishes a presumption that the man who signed is the father. In the famous words of Maury Povich, Florida automatically deems that “you are NOT the father” until a paternity test is conducted proving that “ you ARE the father,” or a court order can establish legal paternity through a Court of Law or the Department of Revenue where a petition is filed to create or establish the parental rights of the father. involved in these decisions.

Often, this kind of a petition will prompt paternity testing which is documentation proving to the State of Florida that the individual that signed the Birth Certificate is eligible to assist in making decisions as well as obtaining time sharing. Any issues that the alleged father may run into with making decisions for the child(ren) regarding school, medical issues, day to day decisions and time sharing cannot be addressed without obtaining a Court Order establishing paternity proving to the State of Florida that the alleged father indeed has the right to be involved in these decisions.

Either party of the alleged child(ren) can bring proceeding in the circuit court to determine the paternity of the child(ren) and then establish a parenting plan, determine the allocation of child support and determine the degree of parental responsibility. Florida Statute section 742.011 discusses the determination of paternity and states that any woman who is pregnant or has a child or any man who has reason to believe that he is the father of a child, or any child may bring the proceeding in circuit court to determine the paternity if it has not been established otherwise.

The party who chooses to bring the paternity cause of action can choose between filing a paternity action in circuit court, or filing with the Department of Revenue. If filing with the Department of Revenue, it will be an administrative proceeding where hiring private counsel is usually not recommended. If the paternity is not contested and the parties simply want to determine child support in such a proceeding, this may be the proper avenue.

However, if the parties are contentious, if there’s a reason to believe that a party is not entitled to equal timesharing, if financial information is missing or unreliable, or to be fully represented by a private attorney, it is recommended that the party file in circuit court to determine parental responsibility, time-sharing, retroactive support if applicable, child support and any other matter related to the parties and the child.

In conclusion, an experienced Florida family law attorney can help you determine and establish paternity rights. Such an attorney should review your options and your needs with regard to relocation of either party, parental responsibility, time-sharing, make up timesharing (if applicable), child support, retroactive child support (if applicable), claims for attorney’s fees and the like. The attorney will assess the situation and decide on the perfect course of action.

Don’t believe the myth that a signature on the Birth Certificate is sufficient. You don’t want to be left in the dust when decisions are made in your absence and without your consent, including but not limited to, your child and his/her mother moving away from Florida. Contact the Quattro Firm to ensure that you secure your rights to your child.