FAQs

1.At what age can a child decide which parent to live with?

By law, a child does not have the right to choose which parent to live with until he or she reaches age 18 (the “age of majority,” when a child is no longer considered a child for all legal purposes). However, under Florida Statute §61.13, a Court in a custody case may consider “the reasonable preference of the child” if the Court determines that the child has the intelligence, understanding, and experience to express a reasonable preference.

2.What is the difference between a contested divorce and an uncontested divorce?

An “uncontested divorce” means the parties have reached an agreement on all of the issues in their case, including the division of assets and liabilities, the disposition of any other property that is not being divided (e.g., the marital residence), spousal support (alimony), all matters relating to the children, if there are any (e.g., parental responsibility, time-sharing, child support, etc.), attorney’s fees, and so forth. Normally, in an uncontested case, the parties will have signed a Property Settlement Agreement (and a Parenting Plan, if there are children) before the case is even filed. In a contested divorce, there may be an agreement on some issues, or even most issues, but other issues remain unsettled. If the parties can’t work out those remaining issues, the Court must decide them. Of course, parties to a contested divorce may still come to an agreement on everything while their case is pending.

3.What are my rights if I’m getting divorced?

Each party to a divorce is entitled to an “equitable distribution” of the assets acquired during the marriage, including the passive appreciation in value of assets that were owned by one of the parties before the marriage and the enhanced equity in such “nonmarital property” created by the expenditure of marital funds. Similarly, the law provides for the equitable distribution of marital debts. Usually, “equitable” means equal, but there are circumstances where a Court can determine that there is some justification for an unequal distribution, such as the parties’ relative economic circumstances or each spouse’s contribution to the marriage.

4.What is a parenting plan?

A parenting plan is a document which governs the relationship between divorcing parents with respect to decisions that must be made for their minor children, including time-sharing, education, health care, whose address will determine school boundaries, transportation, means of communication, extracurricular activities, and so forth. Florida Law requires divorcing parents to develop and agree on a parenting plan or, if they cannot agree, the Court must establish one.

5.Do fathers ever get custody of their children?

Many people believe family law favors the mother, but that’s simply not the case. While equal time-sharing with children may not be in the best interests of very young children and infants, that does not mean it’s always in the best interest of those children to reside primarily with their mother. It simply depends on the unique facts of the particular case.

6.How are same-sex divorces different from opposite-sex divorces?

They aren’t. Same-sex divorces are governed by the same laws as opposite-sex divorces.

7.Can I (and should I) seal or expunge my criminal record?

Florida law permits a person who has not been convicted (“adjudicated guilty”) of a crime (or crimes, if they took place in a single episode) to petition the Court to seal and, in some cases, expunge all records relating to the criminal episode. There are numerous exceptions to this law, however, and some offenses can never be sealed or expunged, so it is important to get a lawyer’s advice on whether you’re eligible to have your record sealed or expunged.

Sealing or expunging a criminal record has many benefits. For example, it allows the person whose record has been sealed or expunged to lawfully deny or fail to acknowledge the criminal episode to which the record pertains, unless the person is applying for a position in law enforcement or wants to become a lawyer or work with children or the elderly (including teachers and health care workers).

8.What is the difference between a misdemeanor and a felony?

The terms “felony” and “misdemeanor” are two classifications of crimes, with felonies being the more serious offense carrying the more severe penalty. In Florida, misdemeanors are divided into two more categories of severity, 1st degree and 2nd degree, the latter being the least severe. A 1st degree misdemeanor in Florida is punishable by a fine that cannot exceed $1,000.00 and/or imprisonment that cannot exceed one year in a county jail. Examples include petit theft, disorderly conduct, reckless driving or trespassing. A first offense DUI and possession of less than 20 grams of cannabis are also misdemeanors.

Felonies in Florida are divided into even more degrees of severity: 3rd degree felonies being the least severe, then 2nd degree, 1st degree, 1st degree punishable by life, and, finally, capital felonies, which can carry the death penalty.

Some misdemeanors are called “enhanced penalty crimes,” which means multiple convictions can lead to reclassification of the crime to a felony with corresponding penalties.

9.What are my rights when I’m pulled over by a law enforcement officer?

If you are pulled over in your car by a police officer and you’re not sure why, ask the officer. But always remember, in any encounter with law enforcement, be respectful, be polite, and do not argue. If the officer doesn’t answer your question, you may ask the officer if you are free to leave. If the officer says no, stop talking and wait for further direction from the officer. Do not exit your vehicle under any circumstances unless directed to do so by the officer, and keep your hands visible.

You are NOT required to answer ANY questions. You must provide your driver’s license, vehicle registration and proof of insurance, if requested, so keep those items within easy reach. You do not have to do anything else you are asked to do. You only have to do what the officer orders you to do. If you’re not sure, then ask (“Is that a request, officer, or a command?”) If it’s a request, you may respectfully decline.

You are NOT required to consent to a search of your vehicle. If the officer has probable cause, he may search your car without your consent. If he does not have probable cause, he must have your consent. Even if the officer threatens to have a narcotics dog sent over, you still do not have to consent to a search of your vehicle.

You are NOT required to consent to a search of your person. If the officer asks, decline the request. If the officer does not ask, however, do not resist.

You are NOT required to perform roadside sobriety exercises. If you are pulled over and the officer believes you’ve been drinking, you may be asked to cooperate in a series of roadside activities designed to demonstrate your level of impairment due to drugs or alcohol. You are not obligated to take part in these activities.

10. Should I take a breath test?

If you are pulled over by a police officer who ultimately places you under arrest for driving under the influence of alcohol (“DUI”), you will be asked to take a breath test. You have a conditional right to refuse to take a breath test, but the condition is, you forfeit your driving privilege for a year. If you have ever previously refused a breath test, you forfeit your driving privilege for 18 months and you can be charged with a separate criminal offense. Of course, if you’re convicted of DUI, you’ll forfeit your driving privilege anyway.

Don’t see your question here? Or do you have specific questions about your case? Call our office to discuss in greater detail. We also offer free consultations, so call the Law Office of Jeffrey Thompson today at 321-253-3771.