A Bill To Be Entitled
An act modifying the family and juvenile law code; greatly strengthening
marriage; protecting the rights of parents and children to their care, custody
and association; protecting against paternity fraud; requiring paternity
testing under certain circumstances; providing for child support obligations;
protecting parents from the felonious acts of their minor children; protecting
children and families from abuses by Protective Services and other related
purposes.
EXECUTIVE SUMMARY
This act serves to make the following changes and additions to Florida
Family Law:
1.
Provides
for the filing of private marital contracts with marriage licenses, allowing
marriage partners to provide for the terms under which their marriages exist,
including the terms and procedures for dissolution, division of assets, and
custody of children.
2.
Modifies
civil liability currently assessed against parents for minor children’s
felonious acts; provides for the ability of parents to forcibly emancipate
children who commit felonies, voluntarily give birth or sire children out of
wedlock rather than accept financial and personal responsibility for those
acts.
3.
Requires
a paternity determination using scientific (DNA) testing before a child support
order can be entered or modified against a man, allows for the recovery of all
child support paid to a woman, and her prosecution for fraud and conversion, if
she defrauded a man in naming him falsely the father of a child and received
child support as a consequence.
4.
Provides
for the recovery of economic and non-economic damages from a person who files a
false domestic violence petition, dismisses a protective order before hearing,
or attempts to entrap an enjoined person to violate a protective order (or to
contact him or her even though they have taken out that protective order.) Provides that a person who takes out a
protective order and then initiates contact in violation of that order voids
the order by their actions, preventing entrapment attempts.
5.
Abolishes
“custody” as an action at law in ordinary civil divorce actions, with
exceptions provided for cases in which a parent is unfit due to abuse, neglect
or abandonment of the child. Abolishes
child support awards except in cases where a parent is unwilling or unable (due
to being unfit) to be fully involved as a shared parent. Prohibits move-aways that have a substantive
impact on parental rights and responsibilities without the consent of the
parties. Requires the court to accept
privately-negotiated agreements on custody, and provides a default of 50/50
parenting for parents who are unable – or unwilling – to agree between
themselves. Defines acts that cause a
parent to be adjudicated unfit for custody.
Requires the court to honor the agreements filed in (1) above. Abolishes interim attorney fee awards. Abolishes the interest of third parties
(including grandparents) to bring custody or visitation lawsuits.
6.
Abolishes
final fee awards from one party to the other as contrary to the interest of the
litigants, in that forcing one to pay an attorney to argue against one’s own
interest is an impermissible legislative act.
7.
Social
investigations are abolished as unnecessary in a climate where all parents are
presumed fit and with equal custodial rights and responsibilities unless proven
otherwise.
8.
Guardian-ad-litem
immunity is abolished as improper in that as persons appointed to act in the
child’s best interest, and given that parents have an indivisible interest in
their children, it is unconscionable to immunize GALs against tort claims for
their negligent or intentional acts which harm either a parent, child, or both.
9.
Strengthens
protections against parental abduction by reducing the standard of proof for a
court to require the cancellation of a child’s passport or other protective
measures against parental kidnapping.
10.
Strengthens
penalties for parental kidnapping by making such an offense a second-degree
felony (from third-degree) and prohibit pleas that reduce the charge to that of
a misdemeanor.
11.
Edit
Chapter 39 of the Florida Judicial Code to modify the State’s Rights and
Responsibilities related to the care of children under its custody, increasing
the protection for children and requiring a higher standard of proof before
children are removed from their homes.
Removes immunity for negligent acts, and requires insurance or bonding
to protect the right of the people to recover for harm done by the Department
and their agents. Protects access to
full, unedited copies of records for children and families impacted by the
Department. Removes confidentiality of
reporters, and immunity for false reports, from those who are the subject of
said reports.
Be It Enacted by the Legislature of the State of Florida:
The Legislature finds that the current family law system in the State of
Florida:
1.
Has
been used to derogate the fundamental social institution of marriage, has
impermissibly infringed on the fundamental liberty interest, as expounded upon
repeatedly by the United States Supreme Court, to the care, custody and rearing
of one’s children, has been abused by individuals to prosecute vendettas and
gain financial advantage, and has forced individuals to fund arguments against
their own interest in court.
2.
Abrogates
the fundamental liberty interest that fit parents, as well as competent adults,
have in setting the terms of their own marital obligations, including but not
limited to matters of finance and child-rearing, as with any other contract
between persons, and that such interest is an inherent and necessary component
of the social institution of Marriage.
3.
Has
violated the Constitutional principle, as expressed in the Constitution, that a
person has a right to face their accuser when criminal conduct has been
alleged, has supported the removal of children from homes when no act of actual
abuse or neglect is ever proven or, in many cases, even referred for
prosecution, and has shielded those who have leveled those accusations from
civil responsibility for their conduct.
4.
Has
treated some minors as adults for the purposes of criminal liability, charging
them with felony offenses, while at the same time forcing parents to subsidize
and even support felonious behavior.
5.
Has
impermissibly granted minors the right to make life decisions that empower them
as adults, while denying their parents the right to declare them as adults,
with all the rights, privileges and responsibilities thereto, thereby shifting
the costs of such empowerment unwillingly upon the parents.
In order to redress these violations of fundamental liberty interests
and Constitutional Rights, which have been perverse, pervasive and oppressive
to the people of the State of Florida, the Legislature modifies the Florida
State Code as follows:
Section 1. Section
741.06, Florida Statutes, is created to read:
741.06
Private Marriage License Terms Enforceable
1.
Parties
applying for a marriage license may attach as an integral portion of their
marriage license application, privately-negotiated agreements bearing on their
marriage, including but not limited to agreements on property ownership,
division of assets and custody of any minor children born or adopted into the
union in the event of dissolution. Such
agreements may include the effect of determination of fault on any subsequent
dissolution proceedings, and may waive, modify, or abrogate any doctrine of “no
fault” divorce.
2.
The
Clerk of the Court shall be required to either accept or reject the party’s
license application, including any such terms and conditions, in full and may
make no modifications thereupon. The
parties may make application for judicial review of any such proposed agreement
prior to application for their marriage license, with costs of any such review,
if requested, to be borne by the parties.
3.
Parties
not filing a private document shall instead file a copy of the Family Law
Handbook, referenced in Section 741.0306, as of the date of the marriage
license application.
4.
The
terms of any such agreement associated with and attached to the party’s
marriage license shall inure and bind the celebrants and their estate(s), in
common and separately, in perpetuity, and no modification of the Statutes shall
retroactively modify the rights, responsibilities, and contractual obligations
set forth in the original application.
5.
The
terms of any such agreement may be modified only by a voluntarily-written
document, signed and notarized by both parties, and filed with the Clerk of the
Court where the original license issued.
No act of the Legislature, nor any arm or instrumentality of the State,
whether explicit or implicit, shall require that such a modification be filed.
6.
The
pleading of such a document shall bind any court of competent jurisdiction in
the State Of Florida to the terms and remedies therein, and the Courts of the
State of Florida shall retain jurisdiction in order to enforce the terms of any
such agreement, irrespective of the later domicile of the celebrants of the
marriage in question.
7.
As the privacy of marital couples is a compelling interest, the terms of
such agreements filed with marriage license applications shall be non-public
documents and available only to the celebrants or their respective estates, and
immune from public disclosure. A person
publishing or disseminating these agreements without the explicit authorization
of one of the celebrants to the marriage shall be guilty of a misdemeanor of
the first degree, punishable as provided in s. 775.082 or s. 775.083.
8.
The parties to a marriage who reside in the State of Florida who do not
currently have such a document attached to their marriage license, whether
their license was originally issued in this state or any other, may re-file
their marriage license with the State of Florida and attach such terms to their
license at any date of their choosing.
Section 61.043 is hereby modified to read as
follows:
61.043 Commencement of a proceeding for
dissolution of marriage or for alimony and child support; dissolution
questionnaire.--
(1) A proceeding for dissolution of
marriage or a proceeding under s. 61.09 shall be commenced by filing in the
circuit court a petition entitled "In re the marriage of _____, husband,
and _____, wife." A copy of the petition together with a copy of a summons
shall be served upon the other party to the marriage in the same manner as
service of papers in civil actions generally. The petition shall include the terms of the
marital agreement filed with the party’s original marriage license, as amended
by the parties, or a statement that no such document was ever filed by the
parties to the marriage.
9.
Section
61.052 is modified to read as follows:
61.052 Dissolution of marriage.--
(1) No judgment of dissolution of marriage
shall be granted unless one of the following facts appears, which shall be
pleaded generally:
(a) The marriage is irretrievably broken
and either:
1. The parties do not
have a marriage agreement
filed with their marriage license, either in Florida or any other state, or
2. The parties do have
a marriage agreement and the irretrievable breakdown of the marriage falls
within one of the permissible areas of the marriage agreement for dissolution
of the party’s marriage.
If such an agreement exists the
marriage agreement must be attached to and filed with the petition for
dissolution.
Section 2. Civil
Liability for Minor Children Modified; Forcible Emancipation Option for Parents
Upon Commission of a Felony Offense or Unmarried Birth:
Section 741.24 is modified to read:
741.24 Civil action against parents; willful destruction or theft
of property by minor.--
(1)
Any
municipal corporation, county, school district, or department of Florida; any
person, partnership, corporation, or association; or any religious
organization, whether incorporated or unincorporated, shall be entitled to
recover damages in an appropriate action at law, in a court of competent
jurisdiction, from the parents of any minor under the age of 18 years, living
with the parents, who maliciously or willfully destroys or steals property,
real, personal, or mixed, belonging to such municipal corporation, county,
school district, department of the state, person, partnership, corporation,
association, or religious organization provided that the
acts described herein
constitute a misdemeanor. If the acts constitute a felony offense, and
one or both parents file a forcible emancipation petition upon conviction for
the predicate felony, the right of recovery against the parents
so moving the court shall be set aside and of no force or effect.
Section 743.097 of the Florida Code is hereby created as follows:
743.097 Forcible
Emancipation of Minors by Parents Upon the Commission of Certain Acts
A circuit court
shall be required to remove the disability of Non-Age from a minor upon
petition from one or both of the minor’s parents in the event:
(1) That the minor is
adjudicated guilty, by trial or any plea establishing guilt, including one of
nolo-contendre, for a felony offense in this state, irrespective of the minor’s
age. Such a declaration of legal
adulthood by the Circuit Court shall operate to release the parents of said
minor from all rights and obligations of parenthood towards said former minor,
including but not limited to the duty of support, shelter and education.
(2) That said minor,
being female, through a voluntary act becomes pregnant and gives birth to a
child out of wedlock without the consent of all parent(s) of said minor having
legal custody of said minor, irrespective of the minor’s age.
(3) That said minor,
being male, through a voluntary act sires a child out of wedlock without the
consent of all parent(s) of said minor having legal custody of said minor, irrespective
of the minor’s age.
(4) The criminal offense
of statutory rape, irrespective of whether the minor is the offender or victim,
shall not disabuse the voluntary nature of the act(s) giving rise to a child
born out of wedlock for the purposes of this section.
Section 3: The
Legislature finds that the current implementation of the law with regards to
paternity determinations often causes men to pay child support for children who
are not theirs, and often rewards women for making false statements of paternity. It is therefore the public policy of the
State of Florida that the following revisions shall be made to Chapter 742, in
the form of the following changes:
742.12 Scientific testing to determine
paternity.--
(1) In any proceeding to establish paternity,
the court on its own motion shallmay
require the child, mother, and alleged fathers to submit to scientific tests
that are generally acceptable within the scientific community to show a
probability of paternity. The court shall direct that the tests be conducted by
a qualified technical laboratory.
(2) In any proceeding to establish
paternity, the court shallmay,
upon request of a party providing a sworn statement or written declaration as
provided by s. 92.525(2) alleging paternity and setting forth facts
establishing a reasonable possibility of the requisite sexual contact between
the parties or providing a sworn statement or written declaration denying
paternity and setting forth facts establishing a reasonable possibility of the
nonexistence of sexual contact between the parties, require the child, mother,
and alleged fathers to submit to scientific tests that are generally acceptable
within the scientific community to show a probability of paternity. The court
shall direct that the tests be conducted by a qualified technical laboratory.
(3) The test results, together with the
opinions and conclusions of the test laboratory, shall be filed with the court.
Any objection to the test results must be made in writing and must be filed
with the court at least 10 days prior to the hearing. If no objection is filed,
the test results shall be admitted into evidence without the need for predicate
to be laid or third-party foundation testimony to be presented. Nothing in this
paragraph prohibits a party from calling an outside expert witness to refute or
support the testing procedure or results, or the mathematical theory on which
they are based. Upon the entry of the order for scientific testing, the court
must inform each person to be tested of the procedure and requirements for
objecting to the test results and of the consequences of the failure to object.
(4) Test results are admissible in
evidence and should be weighed along with other evidence of the paternity of
the alleged father unless the statistical probability of paternity equals or
exceeds 95 percent. A statistical probability of paternity of 95 percent or
more creates a rebuttable presumption, as defined by s. 90.304, that the
alleged father is the biological father of the child. If a party fails to rebut
the presumption of paternity which arose from the statistical probability of
paternity of 95 percent or more, the court may enter a summary judgment of
paternity. If the test results show the alleged father cannot be the biological
father, the case shall be dismissed with prejudice.
(5) Subject to the limitations in
subsection (3), if the test results or the expert analysis of the inherited
characteristics is disputed, the court, upon reasonable request of a party,
shall order that an additional test be made by the same laboratory or an
independent laboratory at the expense of the party requesting additional
testing.
(6) Verified documentation of the chain of
custody of the blood or other specimens is competent evidence to establish the
chain of custody.
(7) The fees and costs for scientific
tests shall be paid by the non-prevailing party parties
in proportions and at times determined by the court unless the
parties reach a stipulated agreement which is adopted by the court.
(8) No application for child support,
or modification of an existing order that results in other than a zero ($0)
dollar award, may be filed against a man under Florida Statutes,
irrespective of the provisions of any other Chapter, without
documented scientific evidence of paternity, except in cases where a child has
been adopted by the putative father.
(9) Any man against whom
child support has been levied, or is currently being levied, and
who has not adopted the child involved, may contest
the paternity of the child covered by such order, irrespective of his marriage
to the mother of the child at the time.
The court shall order scientific testing in accordance with this section
upon presentation of the motion for same, with the following results:
a. If paternity is
established under 742.12, then the man
filing the motion shall pay all costs and expenses and his paternity shall become
unconstestable.
b. If paternity is
disproved, the man alleged to have been the father and who has been paying
child support shall have all of the following remedies:
i.
An immediate judgment
for all of the paid child support to date shall issue,
subject to an interest rate of 6% per annum from the date of payment,
compounded monthly. Such judgment shall be rendered with malice
as the gist of the action, shall be immune from discharge in bankruptcy,
and shall be enforceable immediately by a writ of seizure of any assets
currently held by the woman to whom the funds have been paid.
ii.
The right to prefer criminal
charges against the woman who
alleged that he was the father with the offence of criminal
fraud and conversion in the amount of the support collected under false
pretense. The
District Attorney shall proceed upon and prosecute
any complaint filed under this section by a man falsely accused of paternity.
The statute of
limitations shall run seven (7) years following the child’s 18th
birthday covered by the support order.
Section 4: The
Legislature finds Section 741.28-31 (Domestic Violence) contains multiple
opportunities for abuse of civil rights, and such abuses are frequently
employed as tactical measures in divorce and custody actions. As such the following modifications to the
domestic violence code are made:
Section 741.311 is hereby created to read as follows:
Section 741.311 Recovery
of economic and non-economic damages from dismissed or false petitions;
criminal prosecution required for perjury; dismissal upon
intentional act of petitioner to violate injunction.
A person named as a
respondent in a domestic violence petition shall have a right of recovery
against the petitioner for all costs and expenses incurred as a consequence of
the injunction filed against him or her, whether economic or
non-economic in nature, including but not
limited to actual loss of use of any residential or
personal property, expenses to replace clothing or personal
effects as a consequence of lack of access to same, non-economic
harm for infringement of parental rights with respect to any children of the parties,
and all consequential and incidental damages
associated therein, if:
1.
The complaint is dismissed by the petitioner prior
to hearing, or
2.
No prosecution is recommended, the
charge(s) are dismissed, or
the respondent is found not guilty in
any resulting trial for the predicate act(s) giving rise to the original
complaint, or
3.
The petitioner, as a voluntary act, at
any time attempts to or actually initiates contact
with or causes a violation of the
order by the respondent, either with the
intent to entrap in a violation or for genuine purposes,
against whom he or she has obtained an injunction under this section, or
4.
Any material
element of the petition requesting the original protective order is found, at
hearing, to be false.
In the event of a
finding of falsity of any material element
of the petition for a protective order, the Court shall refer the matter to the
District Attorney and the District Attorney shall prosecute the petitioner for
perjury. Such prosecution shall be in
addition to, and not in substitution for,
the rights of recovery under this section.
The Court shall
dismiss any injunctive Domestic Violence order if, upon hearing, it is
established that petitioner attempted to, or actually did,
cause contact to be initiated or any provision of
the injunctive order to be
violated, whether for genuine purposes or for the purpose of entrapment of the
respondent.
Section 5: Custody of
the Child Abolished Except in Cases of Abuse, Neglect or Abandonment; cures;
parental rights established at birth for both natural parents except in cases
of adoption or surrogacy.
It is the finding of the Legislature that parents have a fundamental
liberty interest in the custody, care and control of their minor children,
irrespective of whether the parents are or ever were in a state of
marriage. As such the Legislature
modifies the following sections of the Florida Statutes to remove “custody” as
a cause of action that may be litigated within this state, provided that both
parents are fit. It is the further
finding of the Legislature that the best interest of children is served by the
personal care and custody of their parents, and that such fundamental liberty
interests shall be protected unless good and sufficient cause is shown for
abrogating those rights, which shall be limited to abandonment or proof by a
criminal standard of neglect, abuse, or other conduct that renders one or both
parents unfit. Finally, it is the
intent of the legislature to allow celebrants to a marriage to determine among
themselves modifications to this general public policy, which are to be recorded
along with the marriage licenses associated with said celebrants, as otherwise
provided for in this act.
To implement these findings the Legislature makes the following
modifications:
1.
Section 742.031(2) is hereby stricken in its entirety.
2.
The following sections of the Florida Statutes are modified as shown:
61.052 Dissolution of marriage.--
(1) No judgment of dissolution of marriage
shall be granted unless one of the following facts appears, which shall be
pleaded generally:
(a) (a) The
marriage is irretrievably broken and either:
1. The parties have no
agreement attached to their marriage license in any jurisdiction, or
2. The parties do have
such an agreement and under its terms the marriage meets the irretrievably
broken test specified therein, or
3. The parties consent
to the dissolution of marriage, irrespective of prior agreement of the parties.
(b) Mental incapacity of one of the
parties. However, no dissolution shall be allowed unless the party alleged to
be incapacitated shall have been adjudged incapacitated according to the
provisions of s. 744.331 for a preceding period of at least 3 years. Notice of
the proceeding for dissolution shall be served upon one of the nearest blood
relatives or guardian of the incapacitated person, and the relative or guardian
shall be entitled to appear and to be heard upon the issues. If the
incapacitated party has a general guardian other than the party bringing the
proceeding, the petition and summons shall be served upon the incapacitated
party and the guardian; and the guardian shall defend and protect the interests
of the incapacitated party. If the incapacitated party has no guardian other
than the party bringing the proceeding, the court shall appoint a guardian ad
litem to defend and protect the interests of the incapacitated party. However,
in all dissolutions of marriage granted on the basis of incapacity, the court
may require the petitioner to pay alimony pursuant to the provisions of s.
61.08.
(2) Based on the evidence at the hearing, which
evidence need not be corroborated except to establish that the residence
requirements of s. 61.021 are met which may be corroborated by a valid Florida
driver's license, a Florida voter's registration card, a valid Florida
identification card issued under s. 322.051, or the testimony or affidavit of a
third party, the court shall dispose of the petition for
dissolution of marriage when the petition is based on the allegation that the
marriage is irretrievably broken as follows:
(a) If there is no minor child of the
marriage and if the responding party does not, by answer to the petition for
dissolution, deny that the marriage is irretrievably broken, the court shall
enter a judgment of dissolution of the marriage if the court finds that the
marriage is irretrievably broken.
(b) When there is a minor child of the
marriage, or when the responding party denies by answer to the petition for
dissolution that the marriage is irretrievably broken, the court may:
1. Order either or both parties to consult
with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi,
or any other person deemed qualified by the court and acceptable to the party
or parties ordered to seek consultation; or
2. Continue the proceedings for a
reasonable length of time not to exceed 3 months, to enable the parties
themselves to effect a reconciliation; or
3. Take such other action as may be in the
best interest of the parties and the minor child of the marriage.
If, at any time, the court finds that the marriage is irretrievably broken, the
court shall enter a judgment of dissolution of the marriage. If the court finds
that the marriage is not irretrievably broken, it shall deny the petition for
dissolution of marriage.
At all times in such
proceedings the court shall honor any filed marital agreement with the issuance
of the original marriage license and any amendment or
modification thereto made by the parties, and may not deviate from the terms
therein.
(3) During any period of continuance, the
court may make appropriate orders for the support and alimony of the parties;
the primary residence, custody, rotating custody, visitation, support,
maintenance, and education of the minor child of the marriage; attorney's fees;
and the preservation of the property of the parties. Orders pertaining to
custody, visitation, support, maintenance and education of the minor children
of the parties, if any, may be made only if one or both of the parents is
adjudicated unfit or has abandoned their family responsibilities as set forth
in s. 61.13.3.
(4) A judgment of dissolution of marriage
shall result in each spouse having the status of being single and unmarried. No
judgment of dissolution of marriage renders the child of the marriage a child
born out of wedlock.
(5) The court may shall
enforce an antenuptial agreement to arbitrate a dispute in
accordance with the law and tradition chosen by the parties.
(6) Any injunction for protection against
domestic violence arising out of the dissolution of marriage proceeding shall
be issued as a separate order in compliance with chapter 741 and shall not be
included in the judgment of dissolution of marriage.
(7) In the initial pleading for a
dissolution of marriage as a separate attachment to the pleading, each party is
required to provide his or her social security number and the full names and
social security numbers of each of the minor children of the marriage.
(8) Pursuant to the federal Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, each party is
required to provide his or her social security number in accordance with this
section. Each party is also required to provide the full name, date of birth,
and social security number for each minor child of the marriage. Disclosure of
social security numbers obtained through this requirement shall be limited to
the purpose of administration of the Title IV-D program for child support
enforcement.
61.071 Alimony pendente lite; suit money.--In every proceeding for
dissolution of the marriage, a party may claim alimony and suit money in
the petition or by motion, and if the petition is well founded, the court shall
allow a reasonable sum therefor. If a party in any proceeding for dissolution
of marriage claims alimony or suit money in his or her answer or
by motion, and the answer or motion is well founded, the court shall allow a
reasonable sum therefor.
61.075 Equitable distribution of marital assets
and liabilities.--
(1) In a proceeding for dissolution of
marriage, in addition to all other remedies available to a court to do equity
between the parties, or in a proceeding for disposition of assets following a
dissolution of marriage by a court which lacked jurisdiction over the absent
spouse or lacked jurisdiction to dispose of the assets, the court shall set
apart to each spouse that spouse's nonmarital assets and liabilities, and in
distributing the marital assets and liabilities between the parties, the court
must begin with the premise that the distribution should be equal, unless there
is a justification for an unequal distribution based on all relevant factors,
including:
(a) The contribution to the marriage by
each spouse, including contributions to the care and education of the children
and services as homemaker.
(b) The economic circumstances of the
parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers
or educational opportunities of either party.
(e) The contribution of one spouse to the
personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any
asset, including an interest in a business, corporation, or professional
practice, intact and free from any claim or interference by the other party.
(g) The contribution of each spouse to the
acquisition, enhancement, and production of income or the improvement of, or
the incurring of liabilities to, both the marital assets and the nonmarital
assets of the parties.
(h) The desirability of retaining the
marital home as a residence for any dependent child of the marriage, or any
other party, when it would be equitable to do so, it is in the best interest of
the child or that party, and it is financially feasible for the parties to
maintain the residence until the child is emancipated or until exclusive
possession is otherwise terminated by a court of competent jurisdiction. In
making this determination, the court shall first determine if it would be in
the best interest of the dependent child to remain in the marital home; and, if
not, whether other equities would be served by giving any other party exclusive
use and possession of the marital home.
(i) The intentional dissipation, waste,
depletion, or destruction of marital assets after the filing of the petition or
within 2 years prior to the filing of the petition.
(j) Any other factors necessary
to do equity and justice between the parties
Irrespective of the factors above
and elsewhere in Chapter 61,
the marital agreement filed with the parties’ marriage license, whether
prenuptial or ante-nuptial,
shall control over all considerations above. No court may set aside such an agreement
and make an award contrary to its terms.
61.08 Alimony.--
(1) In a proceeding for dissolution of
marriage, the court may grant alimony to either party, which alimony may be
rehabilitative or permanent in nature. In any award of alimony, the court may
order periodic payments or payments in lump sum or both. The court may consider
the adultery of either spouse and the circumstances thereof in determining the
amount of alimony, if any, to be awarded. In all dissolution actions, the court
shall include findings of fact relative to the factors enumerated in subsection
(2) supporting an award or denial of alimony. Any award of Alimony must be made with due
regard to any Marital Agreement filed with the parties marriage license and may
not contravene its provisions.
61.09 Alimony and child support unconnected
with dissolution.--If a person having the ability to contribute to the maintenance of his
or her spouse and support of his or her minor child fails to do so, the spouse
who is not receiving support or who has custody of the child or with whom the
child has primary residence may apply to the court for alimony and for support
for the child without seeking dissolution of marriage, and the court shall
enter an order as it deems just and proper, if it finds that
the other parent is either unfit or
has abandoned the family as defined in s.
61.13.3.
History.--ss. 1, 2, ch. 3581, 1885; RS 1485; GS 1933; RGS
3196; CGL 4988; s. 2, ch. 29737, 1955; s. 1, ch. 65-498; s. 16, ch. 67-254; s.
11, ch. 71-241; s. 116, ch. 86-220; s. 320, ch. 95-147.
Note.--Former s. 65.09.
61.10 Adjudication of obligation to support
spouse or minor child unconnected with dissolution; child custody,
child's primary residence, and visitation.--Except when relief is
afforded by some other pending civil action or proceeding, a spouse residing in
this state apart from his or her spouse and minor child, whether or not such
separation is through his or her fault, may obtain an adjudication
of obligation to maintain the spouse and minor child, if any. The court shall
adjudicate his or her financial obligations to the spouse and child.,
shall establish the child's primary residence, and
shall determine the custody and visitation rights of the parties. A
party who is at fault is barred from bringing such a proceeding
and, except where the court finds that a parent is unfit
under s. 61.13.3 it shall not make
an award of custody or visitation. Such an action does not
preclude either party from maintaining any other proceeding under this chapter
for other or additional relief at any time.
History.--s. 1, ch. 61-112; s. 16, ch. 67-254; s. 12, ch.
71-241; s. 117, ch. 86-220; s. 321, ch. 95-147.
61.13 Custody and support of children;
visitation rights; power of court in making orders.--
(1)(a) In a proceeding for dissolution of
marriage, the court may at any time order either or both parents who owe a duty
of support to a child to pay support in accordance with the guidelines in s.
61.30 only if it finds that a parent is unfit under s.
61.13.3. The court initially entering an order requiring one or
both parents to make child support payments shall have continuing jurisdiction
after the entry of the initial order to modify the amount and terms and
conditions of the child support payments when the
modification is found necessary by the court in the best interests of the
child, when the child reaches majority, or when there is a
substantial change in the circumstances of the parties in accordance with
this Chapter. The court initially entering a child support order
shall also have continuing jurisdiction to require the obligee to report to the
court on terms prescribed by the court regarding the disposition of the child
support payments.
(b) Each order for support shall contain a
provision for health care coverage for the minor child when the coverage is
reasonably available. Coverage is reasonably available if either the obligor or
obligee has access at a reasonable rate to a group health plan. The
court may require the obligor either to provide health care coverage or to
reimburse the obligee for the cost of health care coverage for the minor child
when coverage is provided by the obligee. In either event, the court shall
apportion the cost of coverage, and any noncovered medical, dental, and
prescription medication expenses of the child, to both parties by adding the
cost to the basic obligation determined pursuant to s. 61.30(6). The court may
order that payment of uncovered medical, dental, and prescription medication
expenses of the minor child be made directly to the obligee on a percentage
basis. The court may require either party to provide
health care coverage and will apportion the cost thereof between the parties in
direct relationship to their respective net incomes,
and add any such net amount due from one party to another to a basic obligation
under s. 61.30(6). If no child support is otherwise ordered,
the court may enter a medical support order compelling the non-providing parent
to reimburse the paying parent for their ratable percentage of medical
insurance. Uncovered medical,
dental and prescription medications are to be ratably assessed against the
parents, and payment made from the parent with the greater income to the one
with the lesser, according to the ratable
net income of the parties.
(b) All child and
medical support orders must contain an automatic
termination clause upon the earliest occurrence of
the child involved (1) reaching the age of 18 years, (2) becoming emancipated
through their own petition or that of their parents,
or (3) ceasing to reside with the parent receiving the support payment. Obligees shall
report to both the obligor
and the court within ten (10) days:
1. The departure of the
child from the household, whether
voluntarily or involuntarily.
2. Any act of
emancipation, including marriage of the child or an act subject to forcible
emancipation under s. 743.097
3. The
child reaching the age of 18 years.
An order
for child or medical support is void upon the occurrence of
any of the above events and any amount paid
subsequent to those events is forfeit to the obligor upon demand.
(c) Any
child or medical support order that
operates to provide for an obligation beyond any of the above events is void on
its face as contrary to the public policy of the State of Florida.
1. In a non-Title IV-D case, a copy of the
court order for health care coverage shall be served on the obligor's union or
employer by the obligee when the following conditions are met:
a. The obligor fails to provide written
proof to the obligee within 30 days after receiving effective notice of the
court order, that the health care coverage has been obtained or that
application for coverage has been made;
b. The obligee serves written notice of
intent to enforce an order for health care coverage on the obligor by mail at
the obligor's last known address; and
c. The obligor fails within 15 days after
the mailing of the notice to provide written proof to the obligee that the
health care coverage existed as of the date of mailing.
2.a. A support order enforced under Title
IV-D of the Social Security Act which requires that the obligor provide health
care coverage is enforceable by the department through the use of the national
medical support notice, and an amendment to the support order is not required.
The department shall transfer the national medical support notice to the
obligor's union or employer. The department shall notify the obligor in writing
that the notice has been sent to the obligor's union or employer, and the
written notification must include the obligor's rights and duties under the
national medical support notice. The obligor may contest the withholding
required by the national medical support notice based on a mistake of fact. To
contest the withholding, the obligor must file a written notice of contest with
the department within 15 business days after the date the obligor receives
written notification of the national medical support notice from the
department. Filing with the department is complete when the notice is received
by the person designated by the department in the written notification. The
notice of contest must be in the form prescribed by the department. Upon the
timely filing of a notice of contest, the department shall, within 5 business days,
schedule an informal conference with the obligor to discuss the obligor's
factual dispute. If the informal conference resolves the dispute to the
obligor's satisfaction or if the obligor fails to attend the informal
conference, the notice of contest is deemed withdrawn. If the informal
conference does not resolve the dispute, the obligor may request an
administrative hearing under chapter 120 within 5 business days after the
termination of the informal conference, in a form and manner prescribed by the
department. However, the filing of a notice of contest by the obligor does not
delay the withholding of premium payments by the union, employer, or health
plan administrator. The union, employer, or health plan administrator must
implement the withholding as directed by the national medical support notice
unless notified by the department that the national medical support notice is
terminated.
b. In a Title IV-D case, the department
shall notify an obligor's union or employer if the obligation to provide health
care coverage through that union or employer is terminated.
3. In a non-Title IV-D case, upon receipt
of the order pursuant to subparagraph 1., or upon application of the obligor
pursuant to the order, the union or employer shall enroll the minor child as a
beneficiary in the group health plan regardless of any restrictions on the
enrollment period and withhold any required premium from the obligor's income.
If more than one plan is offered by the union or employer, the child shall be
enrolled in the group health plan in which the obligor is enrolled.
4.a. Upon receipt of the national medical
support notice under subparagraph 2. in a Title IV-D case, the union or
employer shall transfer the notice to the appropriate group health plan
administrator within 20 business days after the date on the notice. The plan
administrator must enroll the child as a beneficiary in the group health plan
regardless of any restrictions on the enrollment period, and the union or
employer must withhold any required premium from the obligor's income upon
notification by the plan administrator that the child is enrolled. The child
shall be enrolled in the group health plan in which the obligor is enrolled. If
the group health plan in which the obligor is enrolled is not available where
the child resides or if the obligor is not enrolled in group coverage, the
child shall be enrolled in the lowest cost group health plan that is available
where the child resides.
b. If health care coverage or the
obligor's employment is terminated in a Title IV-D case, the union or employer
that is withholding premiums for health care coverage under a national medical
support notice must notify the department within 20 days after the termination
and provide the obligor's last known address and the name and address of the
obligor's new employer, if known.
5.a. The amount withheld by a union or
employer in compliance with a support order may not exceed the amount allowed
under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b), as
amended. The union or employer shall withhold the maximum allowed by the
Consumer Credit Protection Act in the following order:
(I) Current support, as ordered.
(II) Premium payments for health care
coverage, as ordered.
(III) Past due support, as ordered.
(IV) Other medical support or coverage, as
ordered.
b. If the combined amount to be withheld
for current support plus the premium payment for health care coverage exceed
the amount allowed under the Consumer Credit Protection Act, and the health
care coverage cannot be obtained unless the full amount of the premium is paid,
the union or employer may not withhold the premium payment. However, the union
or employer shall withhold the maximum allowed in the following order:
(I) Current support, as ordered.
(II) Past due support, as ordered.
(III) Other medical support or coverage,
as ordered.