Attorney Anita Johnson Answers Common Family Law And Mediation Questions
If you have not worked with a certified divorce mediation attorney or a lawyer focused on family law matters before, your head may be swimming with questions. Attorney Anita Johnson of the Law Office of Anita M. Johnson, PLLC, has provided answers to some of the most common legal questions she is asked.
What happens in mediation?
The mediator explains the presuit mediation process, and the mediator’s role in empowering the parties to make decisions that work for their family. P.E.A.C.E. is the acronym usually followed to evaluate the various components of the divorce process, as appropriate to your case:
P is for parenting issues, which can include custody, parenting time-sharing and other issues specific to your family.
E is for equitable distribution, also known as the division of assets. Ms. Johnson is a certified financial litigator and can help couples identify salary, bonuses, commissions and employee benefit plans from their financial disclosures, as well as various types of retirement plans for apportionment and distribution. When necessary, third parties such as forensic accountants can be included in the mediation process.
A is for alimony or spousal support. This may be discussed if one spouse has a need for income after the divorce is finalized. It is typically based upon the length of the marriage and the ability of the other spouse to pay alimony.
C is for child support. This is a statutory formula based upon the number of overnights the minor child spends with each parent, plus the net monthly income of each parent.
E is for everything else. This covers any other important issues that are specific to your family.
Do I need to hire an attorney to represent me at a presuit mediation?
You have the right to consult and/or hire an attorney although it is not required. Each party can have an attorney present at a mediation. Alternatively, if desired, an attorney can review the final documents prior to filing.
What is parental responsibility?
Parental Responsibility is comprised of both legal custody and physical custody. Shared legal and physical custody is favored by the court.
Legal custody affords a parent the right to make decisions about their child’s welfare and well-being. Those decisions include giving the parent the freedom to make informed choices about their child’s education, religion, and medical care.
Physical custody simply refers to a parent’s responsibility to provide a suitable home environment, along with necessary amenities, for their child/children and make decisions on their behalf on a day-to-day basis.
Both responsibilities – legal custody and physical custody- are reflected in a Parenting Plan. Physical custody is detailed in the time-sharing component of the Parenting Plan. This includes the number of overnights spent with each parent, as well as the details of day-to-day planning, vacation/holiday planning, travel, and responsibilities and costs associated with children’s activities.
The time-sharing section of the Parenting Plan and the amount of Child Support are interrelated. Child support is based upon the number of overnights per parent plus the income of the parents. Child support is not addressed until after alimony is decided, as alimony is considered income. Other income is also calculated using a child support formula.
How does the enforcement of legal agreements work?
Chapter 61.13 and Chapter 61.14 of the Florida Statutes address concerns related to the enforcement of Marital Settlement Agreements (MSAs), child support orders, parenting time agreements and alimony. Below, a summary is provided for one’s options in each case.
Enforcement of a Marital Settlement Agreement
When a Marital Settlement Agreement is ratified by the divorce court’s judge, or the judge issues a judgment, it becomes a court order.
The equitable distribution portion of an MSA concerns division of assets and liabilities that were formerly jointly held. If an ex-spouse violates this part of the order, they can be served with a Motion To Enforce and held responsible for legal fees and court costs to address the issue. The violator cannot be held in contempt, because equitable distribution is considered a debt and the state does not put people in jail for debts. However, long-term noncompliance can lead to property or asset liens being filed to recover the funds.
Enforcement of the Parenting Plan
Children need to spend time with both parents to maintain a relationship with them. If one parent is not participating during their part of the time-share schedule, and the other parent is spending their allotted time with their child, the noncompliant parent may be ordered to spend make-up time with the child. This parent may also be ordered to attend parenting classes or to pay the other parent’s attorney’s fees related to enforcement of this part of the MSA. The court may also require the parenting plan to be modified.
Co-creating a parenting plan that is flexible, allows for substitutions, and spells out specific options for anticipated situations helps guard against needing to return to court to deal with time-sharing issues.
Enforcement of Alimony and Child Support Orders
If you are concerned your ex-spouse will not make consistent child support payments or alimony payments, the court can order the funds to be transferred via Income Withholding Orders. This withholds the money directly out of the other parent’s paycheck.
Avoiding court-ordered child support payments is looked at seriously by the court. A judge has many powers to compel the noncompliant parent to pay, including suspending their driver’s license or other professional license issued by the state, or blocking their vehicle registration renewal or the renewal of a passport.
Can I Get A Divorce Settlement Modified?
Even the best laid plans and negotiated agreements sometimes need modifications. The general standard that needs to be met to modify a prior judgment is “a material and substantial change in circumstances.” In plain English, something needs to have significantly changed, that was not present last time you were in court, and that the judge considers important enough to allow modification.
Modification of a divorce settlement – whether it deals with alimony, parenting issues (custody/time-sharing and visitation), or child support – can be accomplished by coming to a mutual agreement with the other party before a request is filed or filing a Petition for Modification. Modifications of property distribution are generally not modifiable.
If both parties agree to the changes/modifications, they can file a joint petition. Otherwise, a Petition for Modification needs to be filed and the court process will guide the process. The process is much like starting a lawsuit all over again, including the actions of serving the other party, gathering records and participating in legal “discovery,” utilizing mediation to try to come to agreement, or, alternatively, having a court hearing where the judge will make a judgment on the petition.
Here are a few scenarios that may require modification of the parenting plan and/or child support:
- Change of employer with reduction in salary, a termination of employment, or generally, usually 15% or more change in income. This is an instance where one should file sooner rather than later, as parties are still liable for prior ordered payments until the judge orders a new amount.
- Change of employer or schedule that requires a different time-sharing schedule.
- One parent wants to relocate to a significant distance from the other.
- Your former spouse is now remarried, cohabitating, or has a higher paying job, and you want to reduce or eliminate alimony payments to them.
- Change in living status of a child, who lives with you now and was previously living with the other parent.
- Illness, injury or disability of a child that requires more child support and/or medical expenses.
For alimony modification, the change spurring the petition must be permanent, involuntary and material. Examples of substantial changes may include the following:
- Health issues
- Long-term unemployment or long-term involuntary decreased ability to pay
- Gifts, substantial inheritance or lottery winnings
- Large raise
- Retirement by the person paying alimony (payor)
- Alimony recipient (payee) gets remarried
What are the mediator’s rates for family law mediation?
Attorney Anita Johnson charges $250.00 per hour in a minimum of 3-hour time increments. An all-day (6 hour) mediation session may also be scheduled at the same hourly rate.
How can I schedule a mediation?
Call 239-829-4742 to reach Ms. Johnson or use the online intake form to schedule a 15-minute complimentary telephone call to ensure the process is right for you. If you choose to move forward with mediation, your session will be scheduled via telephone or email. A follow-up phone call or email will confirm the mediation as well as the documents required to be brought to mediation.