Frequently Asked Questions
See below for our most common questions but if you don’t find what you are looking for feel free to reach out.
See below for our most common questions but if you don’t find what you are looking for feel free to reach out.
Dissolution (as divorce is called in Florida), starts with the filing of a petition with the circuit court. This is a sworn document in which the petitioner (the person initiating the action) outlines for the court in some detail what he/she wants. Issues such as child support,time-sharing with minor children, spousal support and equitable distribution of marital property, may be included in such a Petition.
After the petition is filed the Respondent (the other spouse who answers the petition) has 20 days to file an Answer. If the Respondent files no answer or other document in response, a default judgment will be entered against him/her. If a default is entered, the Petitioner, in most cases, will obtain the divorce.
If the Respondent files an answer, he/she can also file a Counter Petition which outlines the issues that he/she wants the court to consider. These issues may be similar to the ones outlined by the Petitioner. Within 45 days of the service of the Petition, if any sort of financial relief was requested, each party must provide certain financial documents and complete a financial affidavit.
In most cases, if the parties cannot agree on all the issues, the case is sent to Mediation. In fact, pursuant to many local court rules, pre trial mediation is mandatory unless excepted by law. Cases where there is a history of domestic violence that would compromise the mediation process normally fall under this exception.
If an agreement is not reached through Mediation the case normally proceeds to a trial where a judge listens to the issues, the parties are allowed to present evidence and at the conclusion of the proceeding a final order is issued by the Judge.
The best interest of the child is the primary consideration for the court. The best interest of the child is determined by an evaluation of all factors affecting the welfare and interest of the child and the circumstances of the family.
The courts normally prefer that parental responsibility for a minor child be shared by both parents unless it finds that shared parental responsibility would be detrimental to the minor child.
Unless it is not in the best interest of the child, both parents are entitled to spend time with their minor child. A time-sharing schedule specifies the time the minor child will spend with each parent ie. weekdays, weekends and holidays.
The length of the marriage is not the sole determining factor in an award of alimony. The court also looks at:
Once need and ability is determined the court then looks at a host of other factors to determine the type and amount of alimony. These factors include but are not limited to:
These factors are enumerated in Florida Statute. The court can also look at any factor that is necessary to promote equity and justice between the parties.
A short term marriage is one lasting less than seven years. Though a short term marriage may not be suitable for permanent alimony (unless in exceptional circumstances), there are other types of alimony such as durational alimony or bridge the gap alimony, which may be awarded for shorter periods of time.
Child support is modifiable under certain circumstances. If both parties can agree (the one receiving payment and the one making payments) then the process will be an easier one. The court will then need to approve the agreed upon modification in order for it to be enforceable.
If there is no agreement, the party requesting the modification must provide a legal basis for the modification. The requesting party must be able to prove a legal basis for the modification such as:
Under certain circumstances, the court may also modify the amounts, terms or conditions of support for a dependent child whether the child is dependent in fact or is physically or mentally dependent.
The type of alimony and the specific set of circumstances will determine whether or not your current alimony award can be modified. Permanent Alimony, for example, may be modified by a showing of a substantial change in circumstances or upon a showing that the obligee (the person to whom the support is owed) is maintaining a supportive relationship.
The court will assess the existence of a supportive relationship by a careful review of certain factors which include but are not limited to:
Durational Alimony- Awarded to provide economic assistance for a specific period of time- may be modified in amount based on a substantial change in circumstances. However, any modification in the length of a durational alimony award may not exceed the length of the marriage unless there are exceptional circumstances present.
Rehabilitative Alimony- Awarded to assist a party with achieving a level of self-support -may be modified based on a substantial change in circumstances or if there has been noncompliance with the rehabilitative plan or a completion of the rehabilitative plan.
Bridge-the-gap Alimony- Awarded to assist in the transition from being married to single, may not be modified.
In all cases, it will be necessary for us to conduct a careful analysis of the type of alimony initially awarded and the specific reasons supporting the need for a modification. As with child support, a request to modify alimony must be filed with the court and served on the other party.
The answer to this question depends on the grounds on which you are seeking to obtain your permanent residency (green card). If you intend to apply as an immediate relative of a US Citizen- (ie. spouse of a US citizen, parent of a US Citizen who is over 21 years of age or, as the unmarried child (under 21 years of age) of a US citizen) and you entered the US with inspection (by a US Official) then you can adjust status in the US. If you are not intending to obtain your green card as an immediate relative, or if your presence in the US is unlawful because you entered without proper inspection, then it is likely that you will not be allowed to obtain your green card in the US.
Note- If you are otherwise ineligible to adjust status in the US you may qualify under a special provision of immigration law that allows you to adjust status, regardless of your failure to maintain lawful status, if you had a labor certification application or immigrant visa petition on file before April 30, 2001 and was physically present in the US on December 21, 2000.
If you are ineligible to adjust status in the US you will have to leave to complete your application at a consulate abroad. Since you have been unlawfully present you will likely be barred from reentering the US. Unlawful presence of 6 months to 1 year will bar reentry for three years while unlawful presence for more than a year will bar reentry for a period of ten years. If barred, you may be eligible for an Extreme Hardship waiver.
Yes. However you will have to file for the Government to waive your unlawful presence. Prior to March 2013 this would require you returning to your country in order to obtain your immigrant visa. You would then face a bar to reentering the US (3 or 10 years depending on whether you overstayed by a year or more). With the new law, you can now apply for Provisional Unlawful Presence Waiver before leaving the US. You will have to prove that if you are refused admission, your spouse (not you), will suffer extreme hardship. Note – this provisional waiver shortens the time that you are away from your spouse in that instead of completing the entire immigrant visa process abroad you complete a large portion of the process while remaining in the United States.
However, if you are provisionally approved, you are still required to return to your country for your immigrant visa interview. Furthermore this provisional waiver only waives unlawful presence but not other legal grounds of inadmissibility such as a being inadmissible for a crime.
Assuming you have had no other arrests in the past 5 years and that you can meet all the other requirements in order to naturalize, you could technically be able to show good moral character for 5 years preceding your application since your conviction was more than 5 years ago.
However, you should not attempt to naturalize without first hiring an attorney to review your conviction. You can be placed in removal proceedings for a conviction for a crime involving moral turpitude committed within 5 years of your admission to the US. The conviction must relate to a crime where a sentence of more than 1 year could have been imposed. For immigration purposes, a withhold of adjudication can be a conviction if there is some form of punishment or penalty. The probation and fine can be considered a type of punishment or penalty.
As it is likely that due to your probation and fine, you were convicted for immigration purposes, you will face removal proceedings if you submit an application for citizenship and the following additional conditions apply:
A trained attorney can examine your case for the possibility of any post conviction relief which could reopen the case and eliminate the charge and conviction altogether or explore the possibility of immigration waivers or defenses in the event you are placed in removal proceedings.
Your ability to work will depend on the type of visa you have which in turn will be dependent on the type of employment visa granted to your spouse. If, for example, you obtained an H-4 non immigrant visa as the spouse of an H visa holder then you will not be able to work in the US. However, if your spouse obtained the ability to work under other visa classifications for non immigrant workers, such as an E visa (as either a treaty trader or investor or an employee of a treaty trader or investor) or an L visa (intracompany transferee executive or manager or an employee with specialized knowledge), then you may be able to obtain the corresponding nonimmigrant visa for the spouse of that visa holder (eg. L-2 for an L visa holder) and seek to obtain employment.
If you accompanied your spouse with a visa that does not allow for work (eg. a B-2 tourist visa), but are able to, based on your spouse’s employment, obtain a visa that will allow you to work, you may seek to obtain that visa by completing Form I-539- Application to Change Nonimmigrant Status.
You are automatically a US Citizen if your parent is a US Citizen by birth or naturalization and:
Note- You must have met all the requirements before your eighteenth birthday.
If you were born out of wedlock, and you are seeking to obtain citizenship through your father, the law requires proof that you were legitimated (i.e. established lawfully as a child of that parent) while in his legal custody and while under the age of 16.
If all the conditions apply, you are an automatic US Citizen and may obtain a certificate of citizenship.
If you do not meet the qualifications for automatic citizenship you will have to apply for citizenship through Naturalization.