Introduction:
 
            There are several reasons why it may be important to act fast if you are considering divorce. In 2018, it was very important to act fast because of the tax implications of alimony as a result of the new tax law. Now that it’s 2019, and the tax laws have already taken effect, people considering divorce may not think that it is necessary to rush into getting a divorce. While it is not a decision to take lightly, it may still be necessary to consider divorcing sooner rather than later if you are already living separately from your spouse and have ruled out reconciliation. Note, this blog is for those who are technically still married and physically separated or residing in different homes. This is not for those who have legally separated which is a different legal fiction than divorce. There might be reasons for couples to be legally separated rather than married. In Florida, where I practice however, there is not a “legally separated” status or designation recognized under Florida law. Here are the top 5 reasons why it may be important to file for divorce NOW if you are considering it:
 
#1. It May Help Your Case Strategically to File First and Fast and Hurt Your Case if You Delay.  

Shady Spouses Hiding Assets 

            Every divorce case is different. Circumstances and facts are different in all cases. Therefore, wanting to file first and fast may depend on your circumstances. One reason to file first and fast is to avoid the situation in which your spouse may try to hide assets. In Miami and Broward counties, for example, there are administrative orders that prohibit transfers of property during the dissolution proceedings. These administrative orders or "status quo" orders go into effect upon service of the petition for divorce on the other spouse. This means that the parties cannot transfer property or act in any way that would affect the equitable distribution of marital assets or cause an undue financial burden on the other party. But because these administrative orders only go into effect when a party files for divorce anything that occurs before the filing of the petition would not be subject to sanctions under the administrative orders. There are still remedies available for the dissipation of marital assets or the improper transfers of property or marital assets, however, tracking the transfers may become more and more difficult to track as time pasts.
 
Lying About Domestic Violence to Affect Child Custody 

            Domestic Violence is obviously a very serious issue. It is not one that I take lightly or consider frivolous. However, I recently successfully defended a husband who was falsely accused of domestic violence coincidently after he told his wife that he would be filing for divorce. I was able to show that the wife lacked credibility and that her claim did not rise to the level of requiring a restraining order, however, it was not easy. Given the seriousness of her allegations, before the ruling, the judge asked if I would consider extending the temporary restraining order to proceed through divorce proceedings. The divorce proceedings had not yet been filed by either party. I responded to the judge with an emphatic "HELL NO YOUR HONOR" (in not so colorful language of course and in a respectful and professional way). I was confident that there was not enough evidence to support a restraining order and I was right. The judge denied her petition for a restraining order.
            The reason I denied the judge’s suggestion was because entering a divorce proceeding with a restraining order would have put my client at a significant disadvantage for purposes of awarding child visitation. Although the family court judge is supposed to be impartial, they are still human. A restraining order with allegations of violence would have prejudiced my client in front of the divorce judge and would have potentially hurt my client’s case for equal or more time-sharing. So if you are considering getting divorced and believe that your spouse is capable of treacherous behavior for strategic advantage, consider filing sooner rather than later.  
 
#2. Children Need to Have a Stable and Regular Visitation Schedule
 
            If the parents are disputing time-sharing, a court needs to decide. Disputes regarding when the children are to spend time with each parent can affect the children emotionally. It is in the children's best interest not to see their parents arguing. Additionally, the parents and children need to have a stable and regular visitation schedule. They should be allowed to spend significant time with both parents on a regular basis. However, if the parents are unable to agree a court needs to decide for them sooner rather later to promote a stable environment for the children.
 
#3. Child Support Needs to Be Established
 
            On a related note, time-sharing for each parent needs to be established because once a time-sharing schedule is determined, then child support is calculated. However, it is in everyone's best interest to establish child support sooner rather than later because the parent paying child support needs to start paying as soon as possible. When determining child support for a new divorce action, courts will go back to the date of separation to calculate retroactive child support owed to the other parent. The retroactive child support obligation is then added to the ongoing child support obligation. Florida courts can go back 2 years for retroactive child support. Therefore, a parent could find themselves with a huge unexpected child support bill before they even start paying on their regular child support bill.
 It is also important for the parent who is expecting to receive child support payments for child support to be established. Given the contentious nature of divorce proceedings, sometimes parents can act in a spiteful manner towards the other parent. Some parents will often put undue financial pressure on the other parent with a complete disregard for how that financial pressure will affect their children. Therefore, a parent who is the primary caretaker should file for divorce and seek relief, even on a temporary basis to ensure that the other parent is not putting undue pressure on them and their children for purposes of getting an advantage during the divorce proceedings. 
 
#4. Alimony
 
            If you expect to receive alimony from your former spouse it is in your interest to seek alimony sooner rather than later. Particularly if you’ve been a stay at home parent. In order for a court to award alimony to a spouse, the spouse seeking support has to establish two things: 1) the need for spousal support, and 2) that the spouse that would be paying alimony has the ability to pay. There are five kinds of alimony in Florida. Temporary, Bridge-the-gap, Rehabilitative, Durational, and Permanent. To receive temporary, bridge-the-gap, and/or rehabilitative, the facts have to demonstrate a reliance on the financially more able spouse to support and justify the award. For a discussion on the different types of alimony subscribe to our website or come back to the blog. If a spouse waits too long after separating to file for divorce and ask for alimony, they may not be granted the award. If the facts demonstrate that the spouse in need has been able to live independently while separated, it may hurt their case for an award of temporary, bridge-the-gap, or rehabilitative alimony.
            Additionally, the obligor spouse may suddenly experience job loss or business troubles if they are anticipating a divorce. This would, therefore, affect their ability to pay. Oftentimes, sudden financial difficulties occur in anticipation for divorce in order to avoid a support award to the other spouse. While there are a number of factors a court will consider before entering an alimony award, it is best to act quickly if you are the spouse in need to make sure that you are able to maintain the standard of living you were accustomed to while married.
 
#5. Peace of Mind 

            Finally, the last reason why you should file for divorce sooner rather than later is for your own peace of mind. Deciding to divorce your spouse should not be made hastily. However, if you’ve thought about it and sought advice and finally decided that there is not a possibility for reconciling then you should file. Especially if you have separated from your spouse. Uncertainty breeds and fuels anxiety. Instead of agonizing over speculating what you will receive in alimony, child support, or how the assets will be distributed, start looking for a divorce attorney that can help you. The sooner you are able to reach a final judgment the quicker you can move on to the next chapter in your life. The better it is for your children as well who also need finality. Once there is a final judgment you will finally have peace of mind.
 
Conclusion

​            If you are separated and considering divorce, it’s not a bad idea to see a counselor if there is any chance of reconciling. However, if there is not then you should speak to an attorney right away. If divorce is imminent but you think that counseling may help for the benefit of the family there are co-parenting services available through the courts that can help. You don’t have to seek counseling prior to filing for divorce. 

 Relocation

Can a parent relocate with their child without the other parent’s permission? What are Florida’s custody laws for unmarried parents moving out of state or wanting to move out of state?

            The rights of the parent actually depends on the situation however, typically a parent cannot just move out of state without the other parent’s permission. If the parent is a father the father’s rights depends on his status with the child. If the Father is the legal father or has been adjudicated the legal father of the child, he has more rights than someone who was not.

The Different Statuses of a Father

Former Husbands
            The father with the strongest rights are those that had children while they were married. In terms of Florida custody laws for unmarried parents moving out of state, former husbands have the strongest rights. Children born during the marriage are presumed to be the Husband’s even if those children are not biologically theirs. When the parents divorce there is an order on time-sharing and parental responsibility. Depending on the language of the order, a mother would likely need permission from the father or the Court to leave further than 50 miles from the father or the state.

Legally Adjudicated the Father (Paternity Action)
            Next is the situation of a father who was never married with the mother of his children but is legally adjudicated the father. This means that when the parents broke up one of the parents started a paternity action in court and then received a court order that said that he is the legal father of the children and governed the rights for visitation or time-sharing and parental responsibility or custody. Again, depending on the language of the order, a mother would likely need permission from the father or the Court to leave further than 50 miles from the father of the State.

Fathers not Legally Adjudicated the Father (No Court Order)
            Lastly is the situation where a father has not been adjudicated the legal father of the child by court order. In terms of Florida custody laws for unmarried parents moving out of state, biological fathers without a court order adjudicating them the legal father have the least amount of rights. Typically this father has little rights if the mother wants to leave the state. However, there is a criminal statute in which a father may have some recourse. This should only be used in extreme situations however. Fla. Stat. 787.03(2) states that in the absence of a court order determining rights to custody or visitation with any minor, any person who interferes with custody rights of another parent commits a third degree felony.

Relocation Requirements for Those with Time-Sharing Orders
              When there is an order on time-sharing and one of the parents seeks to relocate with the children, they must follow the rules set forth under Fla. Stat. 61.13001. According to the statute, a “relocation” means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing. The change must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence for vacation.
                If a parent hopes to relocate, they must either obtain written permission from the other parent or petition the court. There are strict requirements within the statute for a petition for relocation. If a petition is filed and served on a parent, that parent has to respond within thirty days of receiving the petition. This is very important. If that parent doesn’t respond within 30 days then the court will presume that relocation is in the child’s best interests and the court will allow the relocation.
               If the parent replies in time, the court may do one of a few things depending on the situation. They may grant a temporary restraining order restraining the relocation of the child or they may grant a temporary order permitting the relocation of the child pending final hearing. The temporary relocation may be granted if the court finds that the petition to relocate was properly filed and if at the preliminary hearing the evidence presented demonstrates a likelihood of success on the final hearing. The findings to support the temporary order would need to be the same factual basis as would be necessary to support the permitting of relocation and a final judgment.
               The parent petitioning the court for relocation has the initial burden of showing that the relocation is in the best interest of the child. The petitioner’s burden is by a preponderance of the evidence; slightly more than 50%. If the petitioning parent meets that burden then the burden then shifts to the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the child’s best interest.
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How to prepare for a Relocation Case
            You should consult with an attorney if a petition for relocation suddenly becomes possible in your life. Depending on the situation there are a number of strategies that can be employed. When courts are faced with a petition to relocate they will find the following helpful in their decision: the level of involvement of the non-relocating parent in the child’s school, extracurricular activities, the non-relocating parent’s ability to co-parent with the other parent (do they work with the other parent or are they difficult), etc. Make sure that you document your dealings with the other parent. The reality is that a parent will need to present evidence in a hearing if this were to come up.
            If you have any more questions about this or any other area of family law, go to http://www.jpalawfirm.com/contact.html to schedule a consultation.