School District Designation and School Choice: Decision-Making Deadlock

One of the biggest battles in family court, aside from time sharing is school district designation and/or school choice for the child. In Florida, when a parenting plan gives parents joint parental responsibility, one category of major decisions co-parents must make together is educational decisions. Both parents must agree on the child’s school district designation, otherwise the court must decide the designation based on the child’s best interests. School district designation refers to which parent’s address will be defined in the parenting plan as determining the child’s default zoned public school. School choice refers to alternative school enrollment options such as magnet schools, private schools, charters or open enrollment.

Once it is established legally, which parent’s address will be used for school zone designation, if that parent moves to a new neighborhood, the child is not automatically enrolled in the new school district. The previously designated school remains the official designation unless both parents agree to the new school, or the judge approves a change in the designation. Under Florida Statute §61.13, when parents have joint parental responsibility, neither parent can unilaterally change a child’s school and doing so when joint parental responsibility has been legally established can be grounds for contempt.

If parents do not desire to have their child attend the zoned public school, they may want to pursue Controlled Open Enrollment to apply for a school outside of their district. Controlled Open Enrollment required applying in a timely manner to the charter school, specialized program, magnet school or a neighboring district. When parents have joint parental responsibility they are required to both consent to applying to and accepting a school choice transfer.

What happens when the parents cannot agree on the school designation or school choice? The first question is whether the parenting plan already contains a provision for what happens if parents cannot agree on school choice. Some parenting plans have a “tie breaker” clause which would designate one parent with the final decision-making authority to make educational decisions when the co-parents cannot agree. If there is no tie breaker provision in place and the co-parents cannot agree on the school then the court can make the decision on which parent to designate as the ultimate decision maker for education purposes. In making this decision, the court will consider the child’s best interests, the quality of the available schools and proximity to the parent’s homes. One very important distinction to make is that the court considers the best interests of the child; the convenience of the parent is not the court’s primary concern.

Factors the court may consider include the child’s individual learning needs, the preference for keeping children in a school they are already established with and familiar with, which parent can provide a better quality of school, transportation logisitics (such as whether the school is within one or both parent’s zone for school bus transportation or not), and whether the school offers programs tailored to any particular needs of the child (such as an IEP program or IB program). If one parent wants the child to attend their zoned school and the other parent wants to apply for school choice, the analysis is similar, however the court will consider which choice serves the child’s best interests and will consider factors such as commute times, proximity to the time sharing schedule, and quality of the school choice school versus the zoned school.

Lately, more and more parent’s are considering homeschooling as another possible option for school choice. When parent’s cannot agree on whether a child should be home schooled, the court will apply the same analysis, considering the best interests of the child. Homeschooling disputes can be particularly contentious when one parent will serve as the sole educator. A large part of the court’s consideration of the child’s best interests in determining whether ultimate educational decision-making should be awarded to the parent seeking to homeschool, is the quality of the home education. The parent must show that the state’s home education laws have been met and that the education being provided is of sufficient quality.

Co-Parents are strongly encouraged to try to resolve school designation and school choice issues where possible, before seeking court intervention. If you are facing a deadlock in education decision-making with your co-parent, contact Cody Law, to discuss all of the nuances to this issue and explore possible options to resolve the matter.

5 Common Mistakes to Avoid During a Divorce

Tensions can often be high during a divorce. It’s important to tread carefully and be aware of your rights and responsibilities during this difficult time. Speaking with a family law attorney can help you choose the best course of action and avoid these common pitfalls.

1. Sending Disparaging Texts or Emails:

   Hold the phone! Text messages, emails and social media posts can be used against you in Court by your ex, to attack your credibility and character. Your words and actions are a huge factor in the Court's consideration of the best interests of any child or children involved in a Family Law matter.

2. Going Pro Se:

   Understanding your rights and obligations is key. A Family Law attorney will guide you through this process and ensure you reach a fair separation agreement or court settlement.

3. Not Putting the Kids First:

   In all Family Law matters involving minor children, the Court will look to the best interests of the child in making decisions regarding time sharing and parental responsibility. Making decisions based on resentment toward the other parent is never in the best interests of the child and will not work in your favor in the eyes of the court.

4. Moving Out of The Marital Home:

   While you should not stay in the marital home if you fear for your safety, moving out could complicate your claim to an interest in the home. If possible, before moving out of the home you should consult an attorney and ensure there is a parenting schedule in place, where there are children involved, to make sure you have continuing access to the children.

5. Hiding or Depleting Marital Assets:

   In every dissolution of marriage, the parties to the dissolution will make a full financial disclosure. The court will review and determine the marital and non-marital assets. In doing so the court can look at transactions after filing for dissolution and up to two years prior to the filing, for any intentional dissipation, waste, depletion or destruction of marital assets.

   Contact Cody Law to schedule a consultation if you need help navigating divorce or any Florida family law issue.

The Unresponsive Spouse: Default in a Dissolution of Marriage

When you initiate a divorce by filing a Petition for Dissolution of Marriage with the court, the initial pleadings must be served on your spose via process server. Timing is crucial when it comes to responding to the petition. In Florida the responding party has 20 days from service to file their response. But what happens when your spouse fails to participate in the divorce? If your spouse fails to respond to your divorce petition, you may be wondering what happens next. At Cody Law, we aim to guide you through each step in the process and keep you informed and educated along the way.

What Happens Now?

The first step, after the 20 day period has elapsed with no response, is to obtain a Clerk’s default. From there, once defaulted, the case will proceed without your spouse’s input. The court will require a final hearing in order to enter the Final Default Judgment. The relief you requested is not automatic, just because your spouse has been defaulted however. The court will not grant any requests that are unreasonable, even without the other party’s participation. Even if your spouse does not participate, you will still need to present evidence to the judge and testimony in support of your requests for relief. Depending on your individual situation, the court will need to determine each of the following issues, without your spouse’s input. :

• Division of Assets and Debts: Under Florida’s equitable rules, marital assets and debts are divided “fairly” although not necessarily equally. If you proposed a division of assets in your petition, the judge may follow your proposal as long as it is reasonable. The judge however has discretion to modify the proposed division if it is unfair or does not meet requirements under the law.

• Alimony: If you requested alimony in your petition, you will need to present evidence to the judge showing that you have a need for alimony and that the other spouse has ability to pay. The court can award alimony without the other spouse’s input so long as sufficient evidence is presented showing that alimony is necessary in your case.

• Parental Responsibility, Timesharing and Child Support: Even in a default situation, where there are minor children involved, the court must determine parental responsibility, timesharing, and child support based upon the best interests of the child. Child support is calculated under the Florida child support guidelines contained under Florida Statute 61.30, using the spouses’ financial information and the amount of overnights awarded to calculate the support amount. You should provide your financial affidavit to the court. If your spouse fails to provide financial information, the court may estimate their income based on available evidence.

  Does Not Responding Mean We Stay Married?

  A common misconception is that if a party just doesn’t respond then the divorce can’t happen. Florida is a no-fault divorce state, which means that the court only requires proof that the marriage is irretrievably broken in order to grant the divorce. As long as all procedural requirements are followed, the judge will enter the divorce, even without the other spouse’s participation.

  Even if your spouse is not participating in your divorce, you still need to present your case to the judge and ensure that your requests align with Florida Law. If you have questions about divorce or obtaining a default divorce in Florida, contact our office to schedule a consultation.

Squandering the Nest Egg: Dissipation of Marital Assets

What can you do if your spouse is gambling, spending, going into debt, drinking away, or hiding away marital assets during your divorce? Dissipation of marital assets, or intentional waste/depletion of marital property in Florida is a serious concern. It can include excessive spending (outside of what was typical during the marriage), spending related to an extramarital affair, mismanagement of finances (accumulating credit card debt etc.), intentional waste of marital funds or assets, such as through gambling, and asset devaluation (for example destruction of property, withdrawing money from a 401K or withdrawing large sums in cash), diverting funds to friends or family members to shield it from the divorce process.

Florida Courts typically equitably divide all assets and debts acquired during the marriage. However, if it can be proven that one spouse dissipated assets, the court may adjust the division of assets to create a more fair result. The party proving dissipation of marital assets must establish that the assets in question were part of the marital estate; that the actions taken to deplete the assets occurred without the other spouse’s knowledge or consent; that the spending did not benefit the household/marriage; and that the wasteful behavior occurred during the marriage (particularly close to the time of separation). Florida courts can consider dissipation of assets that occurred after filing and within two years prior to filing for divorce, however in limited circumstances the court can look back further.

Potential Remedies

If dissipation is established, there are several potential remedies the court may consider:

• Unequal property division

• An award of 50% of the dissipated amount

• Allocating assets/debts as separate property

• Penalties

• Issuance of an Injunction

  If the dissipation is ongoing, it may be necessary to request that the court freeze certain marital assets during the pendency of the divorce.

  In proving dissipation, having the proper evidence is pivotal. Having the proper legal representation is important. You should monitor all accounts closely and document any questionable transactions. Your attorney may need to conduct further discovery to get a full financial picture and it may be necessary to utilize a forensic accountant to trace hidden assets. Contact Cody Law, PLLC to discuss your specific situation and whether an unequal division of marital property may be appropriate, as well as other remedies, due to dissipation of marital assets.