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Child Support Attorney FAQ

Q: How is child support determined?

A: Virtually all states have adopted child support guidelines that must be applied in divorce and custody cases in which minor children are involved. States have, for the most part, made a determination that every child has the right to the support of both parents while at the same time, parents' rights and needs are to be taken into consideration as well. Based on these principles, states have adopted formulas for determining what the level of child support should be. Generally, these guidelines are based on a percentage of the payor parent's gross income. Florida takes into account the income and standard of living of both parents, and the actual percentage of time that the children spend with each parent. Most states also provide that the formulas are presumed to result in a correct amount, however, states have also adopted procedures for deviating from the guidelines.
Because of child support guidelines, a determination of child support in a particular case generally requires only entering the parties' incomes and the percentage of time spent with the children into the formula to arrive at a solution. The law is designed so that there is not much room for disputes about who should pay what amount of child support. Admittedly, the amount of time that children spend with each parent often does come into consideration, and some parties find themselves in the middle of a custody or visitation battle that may actually be a child support battle.

Q: How long does it take to get divorced?

A: No two cases are exactly alike, and the scheduling of a divorce is largely dependent upon when the judge has time to hear the case. If both parties are in agreement from the start, the divorce can be final in less than one month. If the case has to be resolved through a trial of the issues, it may take as long as two years, or possibly longer if the property issues are large and complex. Many cases where the parties are not in agreement ultimately end in an agreement achieved through mediation. Most judges require every case to go through a mediation process before a hearing will be scheduled. If the parties reach an agreement, the divorce can be finalized within a week or two after the mediation.

Q: Can a divorce decree be changed?

A: As the answers to legal questions often do, the answer to this question usually generates a set of additional questions, such as:

  • What part of the order does the party want to modify?
    - If the modification has to do with property division, in most states, the answer is again no, unless there is evidence that the original decree was based on significantly incorrect information. In this event, states provide procedures for correction of the order based on the newly revealed information. Since states generally require that the parties provide full disclosure of assets and liabilities, if the incorrect information was intentionally provided in order to conceal assets, the court may also impose significant penalties.
    - If, on the other hand, the desired modification involves other issues, child support, spousal support, child custody and visitation, the next question is typically:
  • Has there been a significant change in circumstances since the entry of the decree that warrants a change?
    - In child custody matters, a number of different factors can come into play so that the court may find there is a significant change in circumstances justifying modification.
    -In child support and spousal support matters, the answer again depends on the question of whether there has been a significant change in circumstances to warrant the change. If so, the court may modify its original decree.

Q: Can an ex-spouse move away with my child?

A: In Florida, a specific procedure has been adopted that requires a custodial parent to notify the ex-spouse in writing of an intention to relocate more than fifty miles away. The non-custodial parent is given an opportunity to object to the relocation. If an objection is made, there cannot be a relocation of more than fifty miles without approval by the court.

Probate Attorney FAQ

Q: What is probate?

A: Probate is a legal process during which the court oversees the distribution of assets of a deceased person. If there is a Last Will and Testament, then a Personal Representative is appointed to distribute the estate as required by the will. If there is no Will, then a Representative is appointed to distribute the estate as directed by state law.

Q: Where does probate occur?

A: Your Will is probated in the Court of the county and state in which you lived at the time of your death. If you own any property in another state, another probate proceeding must be started in that state and county.

Q: What assets are subject to probate administration?

A: All assets owned by you in your own name, not in joint tenancy, in trust or with a beneficiary designation, are subject to probate administration when you die.

Q: How is the Will probated?

A: The following is a simplified outline the general probate process.

      1. The original of the Will is deposited with the Court (if any).
      2. The Personal Representative then files a Petition for Probate of the Estate, along with a number of other documents. A court clerk reviews the documents and if they are in order, letters testamentary or some other form of letters of administration are issued.
      3. There is published in a local newspaper by the personal representative a notice of probate which gives rise to a statutory period in which creditors may file claims against the estate.
      4. Generally, for a period of four months from the date of publication of the Petition for Probate, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
      5. During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition, and to collect income for the Estate. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc.
      6. When the four month Claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative begins to distribute all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested.
      7. After all assets have been properly distributed, the Personal Representative files a Petition to be discharged.
  • The minimum amount of time that the probate process can be completed is around six months, but it normally takes longer. Reasons for delays can include Will contests, property cannot be sold, one or more claimants not being notified in the original four-month Claim period so they end up having to be re-noticed, etc. This is among the reasons why it is important to have a good probate attorney; it reduces the chances of complications during the probate process.

Q: Is there any way to avoid probate?

A: Yes, most states have a summary procedure whereby probate is avoided if the value of your assets is less than a certain value, or if the only heir or beneficiary is your spouse. Another method is through appropriate estate planning so that your property passes to the intended beneficiaries automatically upon your death, or through a trust. It is in your best interest to consult with an attorney to minimize the chance of legal complications in trying to avoid probate.