Category: Florida Law Blog

Simplified Dissolution Of Marriage Orange County Florida

Simplified Dissolution Of Marriage Orange County Florida

Simplified Dissolution of Marriage Orange County Florida. Remember when getting a divorce was “easy” to do? Divorce is rarely, if ever easy. Technically speaking, the easiest way to get a divorce in Orange County Florida is by simplified dissolution of marriage. The reason a simplified dissolution is “easy” is because the rules and requirements are clearly defined. Married couples generally cannot obtain a simplified dissolution of marriage in Orange County Florida unless they meet specific requirements.

Requirements Of Simplified Dissolution Of Marriage Orange County Florida

The jurisdictional and technical requirements of simplified dissolution of marriage Orange County Florida are as follows (paraphrased and interpreted for you):

  1. One or both spouses must have lived in Florida (established residency) for at least six (6) months prior to filing the Petition for Simplified Dissolution of Marriage.
  2. Both spouses must agree that the marriage cannot be saved, i.e. it is irretrievably broken.
  3. The spouses CANNOT have any minor or dependent child(ren) together, the wife cannot have had any minor or dependent children born during the marriage (even to another partner), and the wife must presently not be pregnant.
  4. Both spouses must agree completely on the division of their marital assets and liabilities, and must complete a marital settlement agreement to that effect that has been signed and notarized.
  5. Neither party may seek alimony in a simplified dissolution of marriage. Alimony is a major issue that complicates a divorce.
  6. Both parties must be willing to sign and execute all documents required by the Court and must be willing (if asked or unless waived) to attend a final hearing for dissolution.

Simplified Dissolution Of Marriage Orange County Florida How do I Do it?

Requirements of Simplified Dissolution Of Marriage Orange County Florida: The first step you must undergo is checking to see if you meet all of the requirements above. Frankly, you may need to consult with an Orlando Divorce Attorney for verification. The second step is for both parties (since getting a Simplified Dissolution Of Marriage implicitly indicates agreement and cooperation) to sign paperwork and exchange information as required. Two minds are better than one, and the greater the degree of cooperation and understanding, likelier, the easier the process will be. Third, you may wish to contact the Orange County Clerk of Court for verification that you are filing your documents properly and that the Court has accepted your documents.

Requirements of Simplified Dissolution Of Marriage Orange County Florida

Ultimately, when you seek to obtain a Simplified Dissolution Of Marriage Orange County Florida, you are welcome to call the Jacobs Law Firm, PLLC offices Winter Park, and Clermont Florida for more information and guidance.

Lake County Florida Parenting Classes

Lake County Florida Parenting Classes

Lake County Florida parenting classes are a requirement in all family and divorce law cases here in Lake County. A Lake County Florida parenting class is a relatively short course that educates experienced and inexperienced parents on how to handle their conduct during and after parents separate.

The reason behind the Florida Courts requiring the parties to participate in Lake County Florida parenting classes is for the best interests of their children. Divorce and separation can be tremendously difficult on people, both emotionally and physically. The Court feels it is best to compel parents to have some guidance, a helping-hand if you will. 

Rather than defaulting to being irate over mom or dad’s behavior, Lake County Florida parenting classes guide the parties to take a step back and choose their actions and words carefully. Parenting is challenging when couples stay together. Being separated, no matter what the age of the kids, is truly difficult. Many of the parenting classes are called family stabilization courses. Generally, the parenting class providers must be approved by the Department of Children and Family Services (DCF).

Lake County Florida Parenting Classes Online

Are Lake County Florida Parenting Classes Online?

Lake County Florida parenting classes may be found online and are brought to you by a variety of providers that meet the requirements of the courts and DCF. Some of the course providers offer an instant certificate option to avoid delays when you are in a hurry to comply with the Court’s requirements.

After you have finished taking your Lake County Florida Parenting Classes online or otherwise, consider filing your certificate of completion as quick as is practicable. Do not forget to file the certificate, or you may risk avoidable delays in your case. Remember, Court requirements must be met or the Court will not grant your final judgment.

Jonathan Jacobs is a Clermont Divorce Attorney and an Orlando Florida Divorce Attorney who loves helping his clients every step of the way.

Florida Parenting Plan and Custody Example

Florida Parenting Plan and Custody Example: Holiday Time Sharing Schedule Florida

Florida Parenting Plan and Custody Example: Holiday Time Sharing Schedule Florida

When divorce and paternity litigants are negotiating a Florida parenting plan and custody schedule, one of the most time consuming decisions is the holiday time sharing schedule Florida. Holiday time sharing Florida is uniquely painful for many parents. For example, if Person A is religious and celebrates Christmas, Chanukah or Kwanzaa, Person A will want to be with their children during the holiday every year. However, in our Florida parenting plan and custody example, the holiday time sharing schedule Florida offers both parents shared holiday time. Within our Florida parenting plan and custody example, the hypothetical holiday time sharing schedule Florida is spelled out in clear language for one holiday and one school break:

  1. Winter Break:

Person A shall have holiday time sharing with the children from the end of school until Christmas morning on odd years.

Person B shall have holiday time sharing with the children from Christmas morning until New Year’s Eve on odd years.

The schedule will be reversed on even years with Person B having holiday time sharing with the children from the end of school until Christmas morning and Person A having time sharing with the children from Christmas morning until New Year’s Eve on odd years.

2. Spring Break:

During odd years, Person A shall have time sharing with the minor children from the end of school on Friday until the following Wednesday.

Person B shall have time sharing with the minor children from Wednesday at dinner time until Sunday night before school resumes for the following week. The schedule shall be reversed on even years.

Holiday Time Sharing Schedule Florida

Do you see how in our Florida parenting plan and custody example, the holiday time sharing schedule Florida works by allowing both parents holiday time sharing on an equal basis? This really is upsetting to a lot of people. Nobody wants to be without their family during the holidays, but shared parenting plans allow for each parent and their respective family(ies) to have equal time with their children on special occasions.

Can the Petitioner and/or the Respondent work out a schedule that better respects their family and religious wishes? Of course, the parties may design a parenting plan that best suits their mutually exclusive needs and wishes. Our Florida parenting plan and custody example is one of hundreds or even thousands of hypothetical holiday time sharing schedules that can be made in Florida.

In offering a hypothetical Florida parenting plan and custody example our goal is to shine the spotlight on three primary issues you may face in a divorce or paternity suit: 1. Sharing the kids for the holidays or missing your loved ones for the whole special time is difficult. 2. A holiday time sharing schedule Florida is not a one-size-fits-all proposition. 3. Parents are encouraged to think both about their needs and the best interest of their children, particularly when the holidays and families are involved.

Holiday Time Sharing Schedule Florida
Demand Letter Attorney Orlando

Demand Letter Attorney Orlando

Demand Letter Attorney Orlando 

As a demand letter attorney Orlando Florida, I often recommend that clients begin their case by sending a pre-lawsuit demand letter to the potential defendant. A demand letter can accomplish a great deal more than you expect. Here are five reasons from the mind of Jonathan Jacobs, a demand letter attorney Orlando, why sending a pre-lawsuit demand letter can help resolve your case without the need for litigation or better prepare you to litigate:

  1. A demand letter helps your demand letter attorney put the facts of your case in chronological order. When you work closely with your attorney to figure out the details and facts of your case before filing a lawsuit, it can better prepare you in case you need to file against the defendant.
  2. A demand letter from a demand letter attorney Orlando lets the defendant(s) know that you have hired an attorney and are willing to take your legal matter to court if necessary. Sometimes people bluff and never intend to hire a legal professional to litigate a case. If you have hired an attorney, it often causes the defendant to consider settling the case before incurring legal fees and costs.
  3. A demand letter is a great way to explore the strength of your case and to collect all of your evidence before filing a lawsuit. As you provide your demand letter attorney Orlando with your documents, he may notice that your evidence is lacking or missing some crucial component, and you may find your case is better or less strong than you had thought. This could change your mindset on litigation and/or negotiating with the other side.
  4. A demand letter could save you money if it helps you settle before filing a lawsuit. Saving money helps many clients obtain a larger recovery by avoiding attorney’s fees, filing fees, and other relate court costs.
  5. As a demand letter attorney Orlando, it has been my experience that some financial relationships can be repaired with open and honest communication. As your demand letter attorney, I can be the negotiator and liaison between you and the other side when communications have broken down. This can allow the parties to come back together for their mutual benefit.

A demand letter attorney Orlando Florida can save you money by resolving your case before a lawsuit is filed. While this strategy does not always work, if you do not communicate with the other side or attempt to resolve your differences, you may end up in a protracted and expensive lawsuit that may have been avoidable.

Jonathan Jacobs of the Jacobs Law Firm is a demand letter attorney Orlando Florida. Call today for a consultation and pricing.

science of divorce

Science of Divorce

The Science of Divorce: The Fluid Mosaic Model

The science of divorce suggests that divorce cases are like a fluid mosaic model, ever-shifting,constantly changing, and like the issues and the parties involved, complicated! Please bear with me as I provide a definition of the fluid mosaic model to offer you a basis/frame of reference. According to Wikipedia, “The current [fluid mosaic] model describes important features relevant to many cellular processes,including: cell-cell signaling, apoptosis, cell division, membrane budding, and cell fusion. The fluid mosaic model is the most acceptable model of plasma membrane…Its main function is to give shape to the cell.” What in the universe does a divorce have to do with a fluid mosaic model? For one, no two divorces are exactly alike. Much like a divorce for the litigants, the fluid mosaic model addresses many essentials part of life and existence (children, housing,finances, etc).

Analyzing and comparing parts to parts of divorce and the mosaic model, we can arrive at a better understanding of the shifting nature of divorces and the science of divorce. There is most certainly a comparison to be made between membrane budding and reconstituting a divorcing couple’s relationship, only this time as parents rather than romantic partners. Relationships take time to build, and perhaps years to be rebuilt. Meanwhile, conversely, cellular division can refer to the litigants splitting up and becoming separate and distinct entities unconnected to one another despite a common beginning.

Also part of the fluid mosaic model and the science of divorce is apoptosis, which is defined as “the death of cells that occurs as a normal and controlled part of an organism’s growth or development.” In a very real sense, when a married couple divorces, they are undergoing a metaphorical apoptosis. Granted,apoptosis is an end, not a beginning, but divorce is an end in and of itself as well. Divorce means that a couple’s connection, on an every day and routine basis, is severed. This can feel quite severe and have a profound emotional impact on the parties. Moving forward with their lives after divorce is an ordinary and real part of both parties’ development.

One of the primary issues that takes the longest time to resolve is a divorcing couple’s methods of communication. Not unlike cell-to-cell signaling as described in the fluid mosaic model, communicating with one another for the benefit of the children is essential. Finding a way to talk, type, text, e-mail, video conference, or otherwise to one another is a crucial component in the process. This is both the science of divorce and its practicality.

Perhaps comparing a scientific concept that is uber-complex to a divorce is an inexact proposition. Nevertheless, both are ever-changing. During a divorce, which can last for years, people’s lives change. Their finances, jobs, perspectives, housing accommodations, and a number of other important things may change. Fluid mosaic indeed!

Attorney Jonathan Jacobs is a divorce lawyer Clermont Florida and a divorce lawyer Orlando Florida.

same sex divorce laws in florida

Same Sex Divorce Laws in Florida

Recently, the State of Florida decided to recognize same-sex marriage. This fascinating legal development requires same sex divorce attorneys to explore and examine same sex divorce laws in Florida. In the landmark case Brenner v. Scott, the Court held Florida’s ban on same sex marriage unconstitutional,and decided the ban on gay marriage violated both the United States Constitution’s Fourteenth Amendments’ Due Process and Equal Protection Clause(s). 999F. Supp 2d. 1278 (N.D. Fla. 2014). The United States Supreme Court has tested the legality of gay marriage on numerous occasions, and ultimately ruled that the right to marry is a central part ofthe liberty protected by the Due Process Clause. Brassner v Lade, No. 13-012058(37), 2014 WL 7399690, at *3 (Fla. Cir.Ct. Dec. 08, 2014).

Same Sex Divorce Laws in Florida and Same Sex Alimony in Florida

Additionally, in deciding on same sex divorce laws in Florida, both the Florida Courts and the Supreme Court have consistently recognized an individual’s right to have the freedom of personal choice in matters of marriage and family life. (“Under the Equal Protection Clause, persons who are similarly situated may not be classified and treated differently because the Constitution neither knows nor tolerates classes among citizens.” Brandon-Thomas v. Brandon-Thomas, 163 So. 3d 644 (Fla. 2d DCA 2015)). This landmark shift in the legality of same sex marriage brought forth additional issues such as same sex alimony and same sex child support.

As of January 6,2015, the State of Florida recognized same-sex marriage and divorce. Homosexual couples gained the same rights and protections as heterosexual couples.However, with their victory there arose another issue; how is same sex alimony calculated? Let’s delve into Florida divorce statutes for further awareness and guidance on same sex divorce laws in Florida.

Alimony is awarded based on the statutory factors listed in Florida Statute § 61.08, also known as Florida’s Alimony Statute. Courts look to the Statute for guidance on how alimony should be awarded when applied to a specific divorce with unique circumstances. Now that the courts recognize gay marriage and divorce, same sex divorce laws in Florida allow courts to apply the Statute in same sex divorce cases. The Statute directs courts to factor in the length of a same sex marriage when determining an award of alimony. Subsection 4 of the Statute states that a short-term marriage is less than 7 years, a moderate-term marriage is more than 7 years but less than 17 years, and a long-term marriage is over 17 years. Under the same sex divorce laws in Florida, this raises an issue of critical importance in the struggle associated with same sex alimony. What happens when a same sex couple, who has only been legally recognized as having married since 2015, petitions the court for alimony greater than a short term award?

Currently, there are no standard guidelines in same sex divorce laws in Florida that directly decide this issue. Subsection 4 of the Alimony Statute clearly defines the length of marriage as “the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.” Arguments are being made that since same sex marriage was not recognized in Florida prior to 2015, any same sex couple that litigates a divorce will only be able to claim a short-term marriage for purposes of alimony regardless of the length of time the couple has been married.

One of the implications of same sex divorce only recently being recognized, is its impact on a party petitioning the court for an award of permanent alimony. Permanent alimony is based on the needs and necessity of the spouse and is based on the life they experienced during marriage. If the length of a gay marriage is decided in a case to have started only in 2015, in order for a short-term marriage to be awarded permanent alimony, the party must show exceptional circumstances as to why they should be awarded a permanent award. A court rarely finds exceptional circumstances when there is a short-term marriage.

If the divorcing parties are unable to prove those exceptional circumstances needed for permanent same sex alimony, the court may consider durational alimony. Durational alimony is awarded to provide a party with economic assistance for those in a short to moderate term marriage. The award must not,however, exceed the length of the marriage.

Your same sex divorce lawyer is likely to argue for the maximum amount of alimony if you are the party seeking alimony in your gay divorce case, or the minimum amount if you are on the defensive.

same sex divorce laws in orlando

Same Sex Divorce Laws in Florida

If you would like to learn more about same sex divorce laws in Florida please call the Jacobs Law Firm to speak with a same sex divorce attorney in the Orlando Florida area.

Motion for Minor Child to Testify in Florida

Motion for Minor Child to Testify in Florida

Motion for Minor Child to Testify in Florida

Does your paternity or divorce case involve minor children? Are you seeking to have a minor child testify in your case? If so, you may decide to file a motion for minor child to testify in Florida. This motion may be officially captioned as “Motion for Testimony and Attendance of Minor Children.” The corresponding rule within the Florida Family Law Rules of Procedure is Rule 12.407. Fla. Fam. L. R. P. 12.407 provides in part that: “No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation.” This Rule accounts for hearings, depositions, and other court proceedings.

According to Florida Family Law Rule 12.407, which involves a motion for minor child to testify in Florida, neither the Petitioner, nor the Respondent, may depose a minor child, cause him/her to be a witness in court, bring them to a hearing, or subpoena them unless they have first obtained a court order authorizing this to occur. This is the Rule for good reason. Florida family law courts are hesitant to allow minor children to be subjected to their parent’s legal battles. In general, children should not be forced to choose between their parents. The stresses and emotional pitfalls involved are often too overwhelming.

Florida Case Law Regarding a Motion for Minor Child to Testify in Florida

According to Florida case law, “The [Florida] law recognizes a child’s preference, if the child is of sufficient maturity, as a factor in the determination of custody.” Greene v. Kelly, 712 So. 2d 1201 (Fla. 5th DCA 1998). Simply stated, a child’s preference is taken into account when a court decides with which the child will reside a majority of the time. Careful though, read that sentence again. First, the child must be of sufficient maturity. Second, the child’s preference is but one factor, not an outcome determinative element. What determines whether a child is mature enough to appear before a judge or an attorney?

When considering whether you really want to file a motion for minor child to testify in Florida consider how old is old enough for the court (or you as a parent) to allow child testimony to influence its decision regarding custody? As general guideline, “one would NOT expect a ten-year-old to possess character traits necessary to make intelligent decision regarding primary residence.” Holmes v. Greene, 649 So. 2d 302 (Fla. 1st DCA 1995). Read carefully again. This decision does not create a blanket rule, it is merely used as guidance. How mature is the 10-year-old minor child? What is the life experience of the child? A court will consider a motion for minor child to testify in Florida even for a young child, but arguing to a judge that a 6 year old child is mature enough to know where he/she wants to live and with whom may be a difficult proposition, though not impossible.

Should Minor Children Testify in Divorce Case in Florida?

Courts are protective of minor children and their safety. This makes filing a motion for minor child to testify in Florida a decision you must make carefully. So much so, that the Florida Legislature has created Florida Statute 92.55 entitled “Judicial or other proceedings involving victim or witness under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness; special protections; use of therapy animals or facility dogs.” This primarily applies to family and divorce law cases where abuse or other indiscretions have occurred, or where children have intellectual disabilities, but it can help us understand the general position of family law judges as pertains to child testimony.

If you are involved in a child custody dispute and need to hire a family law attorney in Orlando or a divorce attorney in Orlando, call the Jacobs Law Firm to have a consultation regarding child testimony. Filing a motion for minor child to testify in Florida is a decision best made with a great deal of caution and guidance.

Elements of Intentional Infliction of Emotional Distress Florida

Elements of Intentional Infliction of Emotional Distress Florida

Elements of Intentional Infliction of Emotional Distress Florida

Often, the elements of intentional infliction of emotional distress Florida are plead as a companion to a breach of contract complaint/lawsuit. What many plaintiffs do not realize, and what many defendants do not know about this cause of action, is that it is infrequently proven. The elements of intentional infliction of emotional distress in Florida are not easy to prove because the burden of proof is extremely high. As we go through the elements of intentional infliction of emotional distress Florida, think about situations that may rise to the level of intentional infliction of emotional distress, and scenarios that likely do not cross the threshold. The level of proof required may surprise you.

To prove the elements of intentional infliction of emotional distress in Florida, a plaintiff must prove the following five elements:

(1)thewrongdoer’s conduct was intentional or reckless,that is, he intended his behavior when he knew or should have known that emotional distress would likely result;

(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;

(3) the conduct caused emotional distress; and

(4) the emotional distress was severe.

Deauville Hotel Mgmt., LLC v. Ward, 219 So. 3d 949 (Fla. 3d DCA 2017). Keep in mind that if even only one element is not proven by the plaintiff, or if even one element is disproven by the defendant, it may be reversible error for the court to rule in the plaintiff’s favor. All four elements must be shown to prove that the intentional infliction of emotional distress has occurred.

Elements of Intentional Infliction of Emotional Distress in Florida

The factual predicate of the case cited above, Deauville Hotel Mgmt., LLC v. Ward, provides insight into what sort of a claim a court will entertain when a plaintiff pleads and seeks to prove the elements of intentional infliction of emotional distress in Florida. In this case, a married couple sued a hotel that hosted and catered their wedding. The couple sued the Hotel for breach of contract and intentional infliction of emotional distress. These two causes of action are often plead together. The Hotel’s alleged infliction of emotional distress resulted from management moving the couple’s wedding reception from the hotel ballroom to its lobby. One can imagine this could be painful for a couple that had planned their dream wedding, had been thwarted through no fault of their own, and had little time to resolve the situation.

Nevertheless, the Court decided that the plaintiffs’ “subjective response to the allegedly outrageous conduct does not control the question of whether the tort of intentional infliction of emotional distress occurred.” This means that the elements of intentional infliction of emotional distress in Florida must be proven based on an objective, reasonable person standard, and not analyzed exclusively based on one person’s individual and unique reaction to an event. This makes it difficult to prove one has undergone severe emotional distress.

Elements of Intentional Infliction of Emotional Distress in Florida

Intentional Infliction of Emotional Distress in Florida is Hard to Prove

Traditionally, it has been precedent in Florida that for one’s actions to rise to the level of intentional infliction of emotional distress, those actions must be shown to be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” When words such as extreme, atrocious, and intolerable are used, expect the court to require more than mere hurt feelings from a plaintiff.

Perhaps most surprising to potential clients that call our Firm is that “For one’s actions to rise to the level of intentional infliction of emotional distress, it is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Deliberate conduct on the part of a defendant that knows the plaintiff will be hurt is not enough to prove the elements of intentional infliction of emotional distress Florida. Imagine, criminal intent alone is not enough on its own to prove this cause of action. Instead, the defendant’s conduct must transcend all bounds of decency in civilized society.

Jonathan Jacobs is a breach of contract attorney Orlando, and a breach of contract attorney in Lake County Florida. If you would like to seek legal help to prove the elements of intentional infliction of emotional distress in Florida, or to defend against a plaintiff claiming emotional distress, call us for a consultation.

 

 

Same Sex Parents And Child Custody

Same Sex Parents and Child Custody

Same Sex Parents and Child Custody: What happens when an unmarried same sex couple uses artificial reproductive methods to conceive a child, but later separate?

Advances in reproductive technology impact the constituency of the modern family, with a major legal and social impact on same sex parents and child custody. What happens when an unmarried same-sex couple uses artificial reproductive technology to have a child, and that couple later separates without having gotten married? In particular, does the former partner, who is neither the legal nor biological parent of the child, have a legal right to continue being the child’s parent?

To answer this complex question, we have researched an important case that addresses this very issue and is a seminal place marker in the same sex parents and child custody genre/field. According to the Court in De Los Milagros Castellat v. Pereira, the answer is no, a non-biological partner does not have parental rights in this circumstance. De Los Milagros Castellat v. Pereira, 225 So. 3d 368 (Fla. 3d DCA 2017). In De Los Milagros, the two litigants, De Los Milagros and Pereira conceived a child using assisted reproductive technology (artificial insemination). Milagros and Pereira agreed that Pereira would be the birth mother and the child would have Milagros’ last name. The procedure was a success. Pereira, the birthmother, subsequently gave birth to fraternal twins in 2009, one boy and one girl. Tragically, due to a premature birth (there exists a higher risk with twins being born prematurely when in vitro fertilization occurs), the boy did not survive beyond 2 days of life, and the girl was born with special needs.

Same Sex Parents And Child Custody

The couple raised the girl together in their jointly owned home over a period of four years. This is a case where you can see the intersection of family law litigation with same sex parents and child custody. Both cared for the child, took her to medical appointments, and held themselves out as a married couple, though legally unmarried. The parties twice consulted with an adoption attorney regarding the process for the former partner to adopt the child, but no adoption occurred prior to their separation. Id. at 369. Essentially, the couple behaved as parents working in tandem to provide for the best interests of their child, but as the Courts have recently cemented, behavior and custom does not trump biology.

In 2013, the couple separated. The birthmother severed all ties between Milagros and the child. Unbeknownst to Milagros, Pereira changed the child’s last name from Milagros to Pereira. Milagros believed she had no choice but to file a court action to establish her parental rights with the child, a child she helped raise. The Court would ultimately side with the birthmother in this same sex parents and child custody dispute.

Traditionally, in ruling on same sex parents and child custody, “the common law of Florida empowered judges to award child visitation against the will of the birth, biological, or legal parent when the judge found that visitation was in the best interest of the child because a non-parent qualified as a “psychological parent.” Id. at 370. However, this tradition has recently been deemed anachronistic.

Now, regarding same sex parents and child custody, the Court has decided that a birth parent’s constitutionally protected right of privacy should prevail in the face of a challenge by a non-biological party. The Court reasoned: “Florida’s constitutional right to privacy recognizes the zone of autonomy around a nuclear family into which a judge, legislator, or official, no matter how well intentioned, simply cannot go.” Id. at 370. The Court derived from Florida’s enhanced constitutional right to privacy that it is violation of a biological parent’s right to privacy for the legislature to confer on non-parents, even biological relatives such as grandparents, the right to visit minor children against the parents’ will. Id. at 370-71.

Same Sex Parents And Child Custody

Same Sex Parents And Child Custody Case Law

The Court held that, exhibiting an intention to raise a child together does not confer legal rights of parenthood on a non-married, non-biological purported parent, “the birth mother had parental rights protected by the constitution that prevailed over the claims of a partner who was neither the biological nor legal mother.” Id. at 372. The Court denied Milagros’ petition for parental rights and established that if there is not a biological or legal relationship to the child, the Court could not force the birth mother to allow another to invade her family’s privacy.

The exact language expressed by the Court in rendering its opinion on same sex parents and child custody, is “whether the benefits of such support, from a former partner who is neither the biological or legal parent, outweigh possible detriments lies in the hands of the birth mother: The State of Florida cannot wrest that choice from her.” Id.

As the Florida courts continue to render decisions on same sex parents and child custody, we will aspire to provide insights and commentary.

Jonathan Jacobs is a same sex parents and child custody attorney in Central Florida, with offices in Winter Park and Clermont Florida.

Neyza Guzman is a third-year law student and Juris Doctor candidate at Barry University School of Law. She will sit for the Florida Bar in July 2019. Ms. Guzman excels with legal research and writing, holds a prestigious position on the board of the Child and Family Law Journal, and continues to distinguish herself in the family law field as a researcher and a scholarly writer.

 

Motion for default Florida divorce

Motion for Default Florida Divorce

Motion for Default Florida Divorce

A Motion for Default Florida Divorce is governed for Florida Family Law Rule of Procedure 12.140. Rule 12.140 clearly states that unless the court or the parties mutually agree to an enlargement of the amount of time the Respondent has to reply, “a respondent [person being served with divorce papers, and the person that did not initiate the divorce) MUST serve a response within 20 days after service of original process (there is an affidavit of service created when you are served with divorce papers for official court records).

The law (with my comments mixed in) further provides that the initial pleading served on the respondent, demands a reply not later than the date fixed in a notice by publication (if the respondent cannot be served by traditional means, publication may be made in a publication of general circulation). After 20 days have elapsed (not ending on a weekend or a legal holiday per the Florida Rules of Civil Procedure), a petitioner may file a motion for default Florida divorce.

A motion for default Florida divorce is a filing that alleges the respondent has failed to file a response (papers). An answer to a dissolution of marriage pleading confirms the facts or requests made in the petition, or contests them by denial. If a motion for default Florida divorce is granted, the Court will likely render an Order giving the petitioner everything he or she has requested (unless totally unreasonable or unlawful) in his/her petition for dissolution.

Requirements for Motion for Default Florida

Certain minimum requirements exist before the court may grant a motion for default. Namely, service of process must be lawfully made to satisfy due process concerns. An affidavit of service or an affidavit of diligent search must be provided to the court to verify every effort has been made to alert the respondent of the lawsuit filed against them. If the petitioner’s motion for default Florida divorce remains uncontested (appeals can be filed in limited circumstances to overturn an order of/for default), the court order will grant the petitioner’s petition as plead unless some portion is not legally cognizable.

Time to Respond to Counterpetition Florida Divorce

If or when a respondent files a counterpetition, the petitioner then must serve a response to a counterpetition within 20 days after service of the counterpetition. A motion for default Florida divorce can be made by the petitioner or the counterpetitioner. This part of the Rule mirrors the Rule provided above relating to an initial petition for dissolution of marriage and the time given for a respondent to answer. Per the language of the Rule, if a reply is required, the reply must be served within 20 days after service of the response. A counterpetition in a Florida divorce case alleges the respondent’s own legal allegations and requests of/from the court.

For example, if petitioner asks for majority timesharing with the kids, the counterpetitioner may ask for majority timesharing in his/her counterpetition. This is a prelude to resolving the case by expressing the parties’ positions on reaching a settlement or arguing before the court at trial.

There are certain defenses that a party may plead to temporarily toll the time required for an answer to a petition or a counterpetition. You may wish to research the Rule to help you better understand your rights and obligations.

Jonathan Jacobs is a divorce lawyer Orlando and a divorce lawyer Clermont Florida that seeks to help clients understand the Rules of the Florida family court(s). The divorce process is labyrinthine, so why not consult with a legal professional? An attorney with the Jacobs Law Firm is waiting for your call.