Thursday, September 4, 2014

Which Parent Decides on Children's Religious Training after a Divorce

A recent case from the Florida First District Court of Appeal discusses what, if any, restrictions are allowed to be placed on a parent regarding the religious training of their children. (Pierson v. Pierson, 1D14-79 (Fla. 1st DCA August 18, 2014).

In the recent case, the divorcing parents had three children (ages 11, 9, and 5). Since birth they had all been raised Catholic - the mother's faith. During the parties' separation, the Husband became a Jehovah's Witness. After being exposed to his father's religion, the parties' 3rd grade son went to Sunday school and told the class that: (1) their songs were wrong, (2) priests were bad, (3) their bible was wrong, and (4) there was no heaven.

The mother asked the trial court to prohibit the father from exposing the children to other religions. A licensed psychotherapist testified on bahalf of the mother that she found "the beginnings of a substantial emotional  problem" in the oldest son (then 9) as a result of "being immersed in and exposed to two religions simultaneously."

Based on this "demonstrated harm," the trial judge gave ultimate religious decision making authority to the mother. The Court prohibited the father "from doing anthing in front of the children...that disparages or conflicts with the Catholic religion." The mother was also prohibited from disparaging the father's beliefs in front of the children.

The District Court of Appeals (DCA) quoted the United States Supreme Court, "...parents have the right to direct the religious upbringing of their children." The DCA went on to point out that "restrictions upon a non-custodial parent's right to expose children to their beliefs have consistently been overturned absent a clear, affirmative showing that the religious activities at issue will be harmful to the child."

In the case before them, the DCA noted that the psychotherapist's testimony was based on the report of a Sunday School teacher and not on an examination of the child. As a result, the DCA held that there was no evidence presented that the child was harmed by exposure to his father's religion. Therefore the restrictions placed on the father were held to violate his First Amendment rights and were overturned.

The bottom line is that restriction placed on religious training will be overturned unless there is demonstrated harm to the child based on a evaluation by a medical professional.

Jacksonville Divorce Lawyer

Monday, August 25, 2014

What is considered "Income" when calculating Child Support in Florida

Child Support in Florida is calculated using the Florida Child Support Guidelines. The guidelines use the mother's and father's net incomes to determine the child support obligation.

"Net income" is determined by subtracting a party's allowable deductions from their gross income. "Gross income" includes just about any way you receive money:

business income,
disability income,
social security,
workers compensation,
rental income,
alimony received, and
recurring gifts.

The intent of the definition of gross income is to include as income just about every way you can receive money (or things of value). Of course, there are always exceptions to the rules.

In my practice, I mainly see one way in which people receive money that is not included in their "gross income": child support received for a child of another relationship.

For example, if Dan and Sue are trying to determine what Dan's child support obligation would be, they would not include what John pays Sue as child support for their child.

Once your "gross income" has been determined, you need to determine your allowable deductions - which is a topic for another day. 

It is important to note that the judge will not use an online form or calculator to determine a child support obligation. They use a specific computer program (Divorce Power Analyzer by Floridom) to make the calculation. You should consider having a Jacksonville Divorce Lawyer with you when these calculation are made.

Wednesday, August 20, 2014

What to do when DNA proves you are NOT the father and you are paying child support

A recent headline from England caught my attention:

Man can't get refund on £31,000 child support payments despite DNA proving he's NOT father

In the story, a man is seeking a refund from the government of the child support he paid for a child that DNA proves is not his. I'm not sure how the legal process works in England, but in Florida a judge must find that you are the biological father of a child before a child support order can be entered.

When served with a paternity suit, many men will dispute that they are the father of the child. This is what they should do, since you can never know for sure without the test. There are two other things that these men do: (1) ignore the papers, or (2) admit that they are the father. Doing either of these things will eventually lead to the judge holding that you are the biological father of the child - even though there was no DNA test.

Admitting that you are the father eliminates the legal need for the test. By ignoring the papers, you are waiving your right to request a test. If you later find out that you are not the biological father of the child, you must file a Disestablishment of Paternity action to terminate the child support obligation. There are very specific requirement when bringing such a case. You should consult with a Jacksonville Family Law Attorney to explain the requirements.

Monday, August 4, 2014

More to being in Contempt than not Paying

There is more to being in civil contempt than simply not paying your support obligations (child support or alimony).

First, the Court must find that there is a valid order for support that has been unpaid. This is usually the easy part of the analysis. However, the analysis does not stop there.

The Court must also find that (1) the person paying has the present ability to pay, and (2) that person has willfully refused to pay.

Most of the argument lies in the definition of "present ability to pay." I've heard judges say many times that after the IRS gets it's part of your gross pay, the next part goes for child support. It is not a defense to a Motion for Contempt that you don't have any money left over to pay child support after your bills have been paid (rent/mortgage, car, insurance, food, gas,...).

If you have questions about contempt, please call a Jacksonville Divorce Lawyer

Friday, August 1, 2014

Alimony calculation

In Florida, there is no formula for the calculation of alimony like there is for child support. While different judges can come up with different alimony awards, there are some boundaries. For instance, when awarding alimony to a Wife, the Court must be mindful of the Husband’s legitimate expenses and his deficit or surplus (after subtracting his expenses from his after tax income).

It is grounds for appeal if the Court orders a Husband to pay alimony without leaving him with enough of his income to pay his legitimate expenses. As a result it become very important to establish the Husband's legitimate expenses.

If you have questions about alimony, please let me know.