Back on November 5, 2011, (see below) I mentioned that to bring a successful disestablishment of paternity action you must have: (1) newly discovered evidence and (2) DNA test results. The DNA test results could not be the only new evidence.
Just in case you weren't confused enough, Florida's Second District Court of Appeal just handed down a conflicting opinion. In the new case, a husband initially had doubts that he was the biological father of his son. He was assured by his wife that he was the biological father. The couple eventually divorced and child began living with the husband. About 5 years later, the husband obtained DNA test results showing that he was not the child's biological father.
The Second DCA held that since the husband thought he was the biological father of the child, the DNA test results could be used as the newly discovered evidence. The conflicts with the First DCA case (see below) which (I think) would not have allowed the use of the DNA test as the new evidence since the husband had initial doubts about paternity.
Due to this conflict between the appellate courts, the Florida Supreme Court will likely resolve the conflict - eventually.
This is another reason why it is important to challenge paternity in your divorce case if you have ANY doubt at all. This case is also another reason why you should hire an experienced Jacksonville Divorce Attorney.
Saturday, December 17, 2011
Friday, November 11, 2011
Child Support - How do the Courts treat the Unemployed
Generally, if you lose your job - through no fault of your own - a Florida court will reduce or eliminate your child support obligation during the time you are unemployed. It is important to bring the job loss to the Court's attention as soon as possible.
Many client's wonder how Florida law treats those who are voluntarily unemployed or voluntarily underemployed. For example what happens if a high paid doctor quits his job (unemployed) or cuts back his hours (underemployed) before a child support determination is made in his divorce case.
Under Florida law, the court can impute income to a party if the other party offers proof of:
1. work history,
2. occupational qualifications,
3. prevailing level of earnings, and
4. existence of available jobs.
The appellate courts have held these factors must be proven by "competent and substantial evidence." It is not enough for one party to testify (even though they are truthful) that they believe that the other party could get their old job back at their old pay rate.
You should consult with a Child Support Lawyer in Jacksonville FL to discuss these and other child support issues.
Many client's wonder how Florida law treats those who are voluntarily unemployed or voluntarily underemployed. For example what happens if a high paid doctor quits his job (unemployed) or cuts back his hours (underemployed) before a child support determination is made in his divorce case.
Under Florida law, the court can impute income to a party if the other party offers proof of:
1. work history,
2. occupational qualifications,
3. prevailing level of earnings, and
4. existence of available jobs.
The appellate courts have held these factors must be proven by "competent and substantial evidence." It is not enough for one party to testify (even though they are truthful) that they believe that the other party could get their old job back at their old pay rate.
You should consult with a Child Support Lawyer in Jacksonville FL to discuss these and other child support issues.
Saturday, November 5, 2011
Challenging Paternity - UPDATE
Back in July, 2011, I wrote about how a father removes a child support obligation when he finds out that he is not the biological father. The Florida Statutes call this the "disestablishment of paternity."
A recent case sheds some light on how difficult it is to successfully bring one of these cases. First, the facts (as determined by the Court). Unmarried parents had a child. The man was told by the mother that there was a 50% chance that he was the father. A few months after the birth, the man had his name added to the child's birth certificate. Soon thereafter, the couple married. Unfortunately, they soon divorced.
The man did not raise the paternity of the child as an issue during the divorce. The divorce order identified the man as the child's legal father. Three years later, the man filed a Petition to Disestablish Paternity. Along with his petition, the man filed DNA test results which proved that he was not the child's biological father.
There are several factors required for the granting of a Petition to Disestablish Paternity. In this case, the trial court and the appellate court focused on two requirements: (1) that there be newly discovered evidence, and (2) a conclusive DNA test. Both courts held that these are two separate and distinct requirements. The DNA test results cannot be the newly discovered evidence.
The appellate court pointed out that "newly discovered evidence" is evidence "that by due diligence could not have been discovered." Since the mother had initially told the man that there was a 50% chance that the child was his, he could (should) have had a DNA test long ago. Since there was no newly discovered evidence, the man's petition was denied.
The lesson of this case is that if a man has ANY reason to believe that a child is not his biological child, he should challenge paternity in the first judicial proceeding (divorce or paternity case) available to him. For whatever reason, the man in this case chose not to challenge paternity in his divorce. That was his only chance to do so.
If you think you might be involved in a disestablishment of paternity case, please call a paternity lawyer in Jacksonville FL to assist you.
A recent case sheds some light on how difficult it is to successfully bring one of these cases. First, the facts (as determined by the Court). Unmarried parents had a child. The man was told by the mother that there was a 50% chance that he was the father. A few months after the birth, the man had his name added to the child's birth certificate. Soon thereafter, the couple married. Unfortunately, they soon divorced.
The man did not raise the paternity of the child as an issue during the divorce. The divorce order identified the man as the child's legal father. Three years later, the man filed a Petition to Disestablish Paternity. Along with his petition, the man filed DNA test results which proved that he was not the child's biological father.
There are several factors required for the granting of a Petition to Disestablish Paternity. In this case, the trial court and the appellate court focused on two requirements: (1) that there be newly discovered evidence, and (2) a conclusive DNA test. Both courts held that these are two separate and distinct requirements. The DNA test results cannot be the newly discovered evidence.
The appellate court pointed out that "newly discovered evidence" is evidence "that by due diligence could not have been discovered." Since the mother had initially told the man that there was a 50% chance that the child was his, he could (should) have had a DNA test long ago. Since there was no newly discovered evidence, the man's petition was denied.
The lesson of this case is that if a man has ANY reason to believe that a child is not his biological child, he should challenge paternity in the first judicial proceeding (divorce or paternity case) available to him. For whatever reason, the man in this case chose not to challenge paternity in his divorce. That was his only chance to do so.
If you think you might be involved in a disestablishment of paternity case, please call a paternity lawyer in Jacksonville FL to assist you.
Thursday, October 20, 2011
Jacksonville Uncontested Divorce Lawyer
I get a lot of questions concerning uncontested divorce. Here is a re-posting of some info from my website:
You should consider hiring a Jacksonville uncontested divorce lawyer if you and your spouse agree on all the issues in your divorce case.
For a divorce to be considered uncontested, you and your spouse must agree on all issues. If you do not agree on all issues, you should consider talking to a Jacksonville divorce mediator to resolve the remaining issues. The issues that require an agreement include: (1) asset and debt division, (2) child support & visitation (if you have children), and (3) alimony (if any). Of course, your agreement can include terms regarding other issues.
Some potential clients ask, “Why should I hire a lawyer if we already have an agreement?” or “What do I get for my money?” Those are fair questions. The answer is that by hiring an uncontested divorce lawyer in Jacksonville, your case will be resolved quicker and your final judgment will be prepared correctly. First, an experienced Jacksonville Divorce Lawyer can schedule your final hearing months earlier that if you try to handle the case yourself. Also,
Ordinarily, the uncontested divorce papers take 1-2 days to prepare after the initial consultation. After the paperwork is returned it will be filed with the Clerk of Court. Florida law requires that a final hearing cannot be held until at least 20 days from the date of filing. Realistically, you can expect to have a hearing within 4-6 weeks (depending on the county and the judge's schedule). If children are involved in your case, both parents will have to take a divorce class prior to the final hearing. The divorce class can usually be scheduled during the waiting period.
The value of a correctly prepared final judgment should not be overlooked. I have over 11 years of experience in preparing these orders. Most clients have never even seen such an order before. No one wants to go back to court because of a vague or incomplete final judgment.
Hiring a Jacksonville uncontested divorce lawyer is almost always handled on a flat rate basis since the attorney time needed is relatively fixed. The entire cost (including court filing fee) of an uncontested divorce is usually around $1,000.00 whereas the cost for a contested divorce has no limit and commonly starts at $5,000.00 for each person.
If you have children, it is important that you understand the Child Support Guidelines. The judges will require that you comply with the Child Support Guidelines. The guidelines require that child support be calculated by a specific formula. As a result, you and your spouse are not allowed to simply agree on a child support amount. There are a few exceptions to this rule. An uncontested divorce lawyer in Jacksonville can explain these rules.
There are a few other rules to consider. Florida law requires that one spouse reside in Florida for the 6 month period before the beginning of the case. There are a few exceptions to this rule.
If you have any other questions, please feel free to call Jacksonville Uncontested Divorce Lawyer, A. James Mullaney, at 904-858-4334 to learn more.
You should consider hiring a Jacksonville uncontested divorce lawyer if you and your spouse agree on all the issues in your divorce case.
For a divorce to be considered uncontested, you and your spouse must agree on all issues. If you do not agree on all issues, you should consider talking to a Jacksonville divorce mediator to resolve the remaining issues. The issues that require an agreement include: (1) asset and debt division, (2) child support & visitation (if you have children), and (3) alimony (if any). Of course, your agreement can include terms regarding other issues.
Some potential clients ask, “Why should I hire a lawyer if we already have an agreement?” or “What do I get for my money?” Those are fair questions. The answer is that by hiring an uncontested divorce lawyer in Jacksonville, your case will be resolved quicker and your final judgment will be prepared correctly. First, an experienced Jacksonville Divorce Lawyer can schedule your final hearing months earlier that if you try to handle the case yourself. Also,
Ordinarily, the uncontested divorce papers take 1-2 days to prepare after the initial consultation. After the paperwork is returned it will be filed with the Clerk of Court. Florida law requires that a final hearing cannot be held until at least 20 days from the date of filing. Realistically, you can expect to have a hearing within 4-6 weeks (depending on the county and the judge's schedule). If children are involved in your case, both parents will have to take a divorce class prior to the final hearing. The divorce class can usually be scheduled during the waiting period.
The value of a correctly prepared final judgment should not be overlooked. I have over 11 years of experience in preparing these orders. Most clients have never even seen such an order before. No one wants to go back to court because of a vague or incomplete final judgment.
Hiring a Jacksonville uncontested divorce lawyer is almost always handled on a flat rate basis since the attorney time needed is relatively fixed. The entire cost (including court filing fee) of an uncontested divorce is usually around $1,000.00 whereas the cost for a contested divorce has no limit and commonly starts at $5,000.00 for each person.
If you have children, it is important that you understand the Child Support Guidelines. The judges will require that you comply with the Child Support Guidelines. The guidelines require that child support be calculated by a specific formula. As a result, you and your spouse are not allowed to simply agree on a child support amount. There are a few exceptions to this rule. An uncontested divorce lawyer in Jacksonville can explain these rules.
There are a few other rules to consider. Florida law requires that one spouse reside in Florida for the 6 month period before the beginning of the case. There are a few exceptions to this rule.
If you have any other questions, please feel free to call Jacksonville Uncontested Divorce Lawyer, A. James Mullaney, at 904-858-4334 to learn more.
Wednesday, September 28, 2011
Florida court: "Spanking children not domestic violence"
I'm often asked if spanking a child is child abuse. The simple answer is "sometimes yes, sometimes no." A recent decision by Florida's First District Court of Appeal sheds some light on the question.
On February 11, 2011, a father, while holding his daughter's arm, spanked the daughter once on the rear end. The daughter testified that no mark was left as a result of the incident. The child's mother (also the father's ex-wife) requested a domestic violence injunction. The trial court (in Leon County) entered the domestic violence injunction and stated that the domestic violence statute did not allow parental discipline as a defense. The father appealed.
In reversing the lower court's decision, the First District Court of Appeals noted that a parent's right to administer reasonable and non-excessive corporal punishment (i.e. spanking) to discipline their child is legislatively recognized. Fla. Stat. 39.01(2) & 984.03(2). While the domestic violence statute does not allow for a parental discipline exception, the statute does not specifically exclude such a defense.
The court was careful to state that there have been examples of parental discipline that were unreasonable and, therefore, child abuse. The important question is "what is reasonable?"
The District Court of Appeal's opinion is only a few pages. If you would like to read it, please click here.
Please call my office at 904-858-4334 if you have any question for a Jacksonville Divorce Lawyer.
Sunday, August 21, 2011
Budget Cuts mean Delays for Divorce
Recent cuts in the California state court system have caused and are causing delays for non-criminal cases such as divorce cases. Officials estimate that even an uncontested divorce could take upward of 18 months. By law all divorces in California take at least 6 months. Florida has a similar statutory delay, but it is only 20 days!
There have already been severe budget cuts to the court system in Florida. Most likely, there will be more cuts in the near future.
You can read the full article here.
There have already been severe budget cuts to the court system in Florida. Most likely, there will be more cuts in the near future.
You can read the full article here.
Thursday, August 4, 2011
Equal Time Sharing
Over the past few years, I've received many phone calls from clients who wish to avoid fighting over the living arrangements of their children when they get divorced. Often, the only thing that the husband and wife agree on is that they both want to spend a lot of time with their children. Usually they work out a schedule where the children would spend equal (or near equal) time with each parent.
Unfortunately, I had to tell these parents that the court looked unfavorably on such a time-sharing (or visitation) schedule. I was my impression that most judges thought that such an arrangement was hard on the children. While husbands and wives are free to settle their divorce case as they see fit, the time-sharing schedule will only be approved by the court if the judge thinks that schedule is in the children's best interest. Often we could convince the judge that an equal time-sharing arrangement was in the children's best interests, but it was an uphill battle. In legal terms, there was a presumption against equal time-sharing.
Fortunately, there is no longer such a presumption. A recent appellate case specifically held that "....there is no longer a presumption against equal time-sharing."
I'm my opinion, this will allow parents a greater opportunity to design a time-sharing plan that works for their family without having to worry as much about getting judicial approval for their plan.
If you would like to discuss this or any other family law issues, please call my office at 904-858-4334 or visit my website at Jacksonville Divorce Lawyer or Jacksonville Divorce Mediation .
Unfortunately, I had to tell these parents that the court looked unfavorably on such a time-sharing (or visitation) schedule. I was my impression that most judges thought that such an arrangement was hard on the children. While husbands and wives are free to settle their divorce case as they see fit, the time-sharing schedule will only be approved by the court if the judge thinks that schedule is in the children's best interest. Often we could convince the judge that an equal time-sharing arrangement was in the children's best interests, but it was an uphill battle. In legal terms, there was a presumption against equal time-sharing.
Fortunately, there is no longer such a presumption. A recent appellate case specifically held that "....there is no longer a presumption against equal time-sharing."
I'm my opinion, this will allow parents a greater opportunity to design a time-sharing plan that works for their family without having to worry as much about getting judicial approval for their plan.
If you would like to discuss this or any other family law issues, please call my office at 904-858-4334 or visit my website at Jacksonville Divorce Lawyer or Jacksonville Divorce Mediation .
Friday, July 29, 2011
When Can a Legal Father Challenge Paternity?
In a relatively recent developement in Florida law, fathers (in paternity/child support cases) can challenge the determination of paternity until the child's 18th birthday. Of course, there are some conditions and limitations on the ability to make such a challenge.
The conditions / limitations:
1. Father must have DNA test or has requested one,
2. Father must be current in child support (or have "good cause" as to why he is behind)
3. Father cannot have agreed he was the father after knowing that he was not the father.
There are a few other technical conditions that I won't get into here.
The statute that allows for this paternity challenge is contained, as you might expect, in the paternity statute (Fla. Stat. 742). Whether or not these provisions apply to ex-husbands is less clear. There are some indications that ex-husbands who were lied to regarding the paternity of their children may have the same protection that fathers in paternity cases have. This issue has not yet been decided by the appellate courts in Florida (but I'll bet it will be soon!).
The bottom line is this: If you are paying child support for a child that you think or know is not your child, the law now allows you to prove you are not the father and, as a result, stop the child support.
The conditions / limitations:
1. Father must have DNA test or has requested one,
2. Father must be current in child support (or have "good cause" as to why he is behind)
3. Father cannot have agreed he was the father after knowing that he was not the father.
There are a few other technical conditions that I won't get into here.
The statute that allows for this paternity challenge is contained, as you might expect, in the paternity statute (Fla. Stat. 742). Whether or not these provisions apply to ex-husbands is less clear. There are some indications that ex-husbands who were lied to regarding the paternity of their children may have the same protection that fathers in paternity cases have. This issue has not yet been decided by the appellate courts in Florida (but I'll bet it will be soon!).
The bottom line is this: If you are paying child support for a child that you think or know is not your child, the law now allows you to prove you are not the father and, as a result, stop the child support.
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