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.

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.