Module 3

Primary Issues

PRIMARY ISSUES INVOLVED IN DIVORCE WITH CHILDREN; or PATERNITY ACTION


There are important differences between a divorce and a paternity action. Couples divorce only if they were married, and the central document to request a divorce is called a Petition for Dissolution of Marriage. A paternity action is like a divorce, but for parents who never married and have a child or children together. In a divorce the property (assets) and debt (liability) are considered marital assets and liabilities. Most of the time any and all property and debt that was either acquired or incurred while the couple was married are the property and obligation of both, even if the property or debt is only formally owned by or incurred by one of the parties. For example if a married couple buys a house while they are married, but only one of them is on the deed for the house, the house is still considered marital property. Likewise, for vehicles; and likewise for debt. Consumer and credit card debt incurred while a couple is married is considered marital debt, even if only one of them used the credit card and incurred the debt.


This is not so for unwed couples. In a paternity action one of the parties initiates a paternity action. Division of property is not part of the court proceedings. The central form that one parent files with the court is called a Petition to Determine Paternity and Related Relief. The outcome of the court proceeding which will be reflected in the Final Order of Paternity is that the biological father is the legal father; and rulings about the children like the Parenting Plan and Child Support. In Florida, it is not enough for a biological father to be named on the child's birth certificate to be considered the legal father. When the couple was not married, the parties must go through the process to establish paternity for the father to be able to fully exercise his paternal rights. The property and debt that an unmarried couple acquire during their relationship remains the sole property or obligation of the person who legally owns the property; or in the case of debt, is legally owed by the person who incurred it.


The division of debts and assets, for a divorcing couple or a couple establishing paternity, is beyond the scope of this course. Dividing property and debt during a break up of an unwed couple can also be difficult and if parties can be as fair as possible, then there is less possibility of hurt and anger spilling over to issues about the children.


At the heart of every divorce and separation are these primary issues:


Equitable Distribution – means fair, not necessarily exactly equal. Equitable distribution refers to how marital assets and debts are divided. This is usually not a factor in a paternity action.

Parental Responsibility – Shared or Sole; Parenting Plan and Timesharing Schedules

Payment of Child Support and Other Financial Responsibilities

Alimony/Spousal Support. This is never a factor in a paternity action.


UNCONTESTED VS. CONTESTED 


If you and your spouse or significant other can agree on the terms of your break up, instead of having a judge decide them for you, the process can be simpler, less painful, and much less expensive. Studies have shown couples who actively participate in settling a divorce or separation are most likely to avoid conflict later on and tend to cooperate best in co-parenting. An uncontested divorce or break up is one where the parties can reach a decision as to the terms of their split without going to trial. Uncontested break ups move more quickly through the courts and are usually less expensive than contested cases.


Couples should try to work out mutual terms for their separation without going to court. These agreements should be memorialized in a marital settlement agreement, and or joint parenting plan, notarized, and filed with the court as part of the process. If the parties cannot resolve disputes and create a marital settlement agreement and/ or joint parenting plan on their own, then mediation is the next logical step. Frequently, a family court judge will order the parties to try to mediate their differences early in the process. This saves time and money by bypassing the lengthy litigation and trial process. Complex issues, high financial stakes and technical legal procedures are the marks of contested divorces and paternity actions.


CAN THERE BE A HAPPY BREAK UP?


It is probably wiser to think of terms of a successful or “clean” break up, rather than a happy break up. A successful break up is one where all issues regarding the children have been thought through and resolved. Frequently, one party prefers to stay in the marriage or relationship, and the other party wants out. It takes only one person to want – and ultimately get – divorced or separated from the other. While you may not have the option to save your marriage or relationship, you can make every effort to save your family. Once you have children with your spouse or significant other, you both will be parents forever.


Collaborative / Begrudging/ Cooperative / Combative – This is just a short list of terms that fit very well when trying to describe the varied feelings or demeanor exhibited by parties going through a break up. Of course, a collaborative approach is certainly the most desired and the most likely to lead to a "successful" divorce and let you "save your family".


For many reasons, the Courts encourage parents to work together to create their own parenting plan and timesharing schedule as opposed to the Judge having to create one for you. A few counties have model Parenting Plans, but, for the most part, parents are encouraged to carve out a Parenting Plan that works best for their family. While most Judges are truly concerned and sincerely care about the outcome of each case they hear, they are only human and each family is different. Besides, even in the midst of divorce, you both know your own family and their needs better than anyone.

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