SHOULD I PAY CHILD SUPPORT EVEN IF THERE IS NO COURT ORDER?

Often times in divorce, men walk through the door and immediately state that their Wife is asking for support; alimony for herself, as well as support for the children. If you’re involved in a new case, the law may allow the support to be calculated retroactively to the date you both separated. If you’re involved in a post judgment case (i.e., you’ve already been to court before and received a final judgment and these problems are now happening after the conclusion of all of that.), the law may allow the potentially modified support obligations to be calculated retroactively to the date of the filing of a supplemental petition. If the second scenario applies to you, you must continue paying your support obligation as previously ordered until agreement or further order of the court. Just because you file a supplemental petition doesn’t mean you can just stop paying what you were ordered to pay before.

Now, although the retroactive date in new cases may be capped at twenty-four months prior to the date of filing, it may be in your best interest to begin paying some voluntary child support so you don’t wind up with a large retroactive amount owed. But, before you do, you need to talk to an attorney for a number of reasons. First, child support is statutory, so someone needs to run guidelines to see who actually has the child support obligation. Even if you’re making more money than her, if you have the children the majority of the time, she may owe you child support. Depending on your situation, if the guidelines are indicating that you may owe child support, paying some voluntary money to the other party might be a good idea. On the other hand, alimony is far more abstract and really depends on the other side as much as the analysis depends on you. With a need versus ability to pay approach, you may want to hold off on this one until either agreement or further order of the court. Paying money to the other side for her support may be evidence of your ability to pay, and could potentially be used against you as evidence that you can continue facilitating that need. Your soon to be ex-wife may need support, however, it’s probably best to wait to take a much closer look at the financial disclosure before doing anything voluntarily. On the other hand, if you do decide to pay at least some child support voluntarily, you should do so by writing her a check with the memo line at the bottom stating what it’s for and the date. (e.g., For Child Support – 7/1/2017.) Keep copies of these checks and provide same to your attorney, as he or she will need that evidence to argue for credit against any retroactive child support due and owing at a later date. NEVER pay support in cash.

If you, or someone you know, is about to embark on a divorce or has been served with papers, don’t hesitate, call Men’s Rights Law Firm today at 239-829-0166.

How long is it going to take for me to get divorced in Florida?

Depending on where you are in the state of Florida, the flow of a case could be different. For the purposes of this blog, the below will not be an exhaustive list of possibilities, however, if you are getting divorced in Lee/Collier/Charlotte County, the following is a general overview of what you may expect from a typical divorce case as you begin to embark down this road.

If you haven’t been served with papers, and you are considering being the one who files, then it will take at least a few days to discuss with you how you would like to initiate the proceedings. For some men, they have already spoken to their wife, and the parties are amicable with a clear understanding of exactly what they want out of a settlement. For those cases, depending on the amount of exchanged financial disclosure, it could be much quicker than a standard case. Either way, in this scenario, we will need at least signed, and notarized, financial affidavits from both parties before beginning to draft a proposal for settlement.

Depending on how quickly both parties can return signed, and notarized, financial affidavits, and whether you are comfortable with only that disclosure method, you may be farther ahead than most, as from that point all we would have to do is then organize your terms for settlement, draft a proposal, then possibly revise if needed before the document would be ready for signatures. All said and done, if a proposed marital settlement agreement is simple, without many changes to the draft, and the parties agree and sign, then the case could be wrapped up soon thereafter with some closing documents.

Please note however, that although obtaining an agreement in writing is likely the biggest feat here, one will not obtain an actual divorce until the judge signs off on a Final Judgment that adopts the aforementioned settlement agreement. Overall, if this is your situation, and everything goes smoothly, this process could take between a few weeks to a few months, depending on the circumstances. Considering some cases can last for years, this may not be a bad route if you and your wife can communicate about how to resolve everything.

On the other hand, if the parties are not amicable, and you are the one initiating the proceedings, then you must be prepared to be patient, as you will be subjected to the flow of the court system, which can be slow at best. If this is your situation, then you first must file your petition for dissolution with the court and serve it on the other party. It usually takes a few days, to a few weeks to finalize and file these documents, depending on how accessible you are and available you can be to communicate and sign the documents. Once filed, it usually takes a few days to obtain a summons from the clerk. From there, the papers will be sent out for service. If she is easy to find, service can be effectuated quite quickly. However, if she is difficult to find, this could take much longer, thereby stalling the process.

Once served, she will have twenty days to answer your petition. If she doesn’t file a counter petition, then the pleadings are then closed and you are simply looking at some financial disclosure and possibly a parenting class, if there are children involved, in order to complete your requirements before going to a case management. If she does file a counter petition, then you will have twenty days from that point to file an answer to same, thereby closing the pleadings at that point. Either way, both parties will have forty-five days to do financial affidavits, mandatory disclosure, and the parenting class. In Lee County, you will have a case management set at some point during this time. This meeting is an informal meeting with the judge’s case manager. He or she is assigned to your case to help keep the case moving forward and make certain that parties are hitting their deadlines. Charlotte County has a similar system, and Collier County generally sets such meetings before the judge or magistrate. Assuming no motions or petitions for domestic violence injunctions, etc. have been filed at, or before, that point, the next step no matter the county would likely be to go to mediation.

Mediation is a requirement, and so before you can have your day in court, you are required to attend mediation. If you settle at mediation, for all intents and purposes, the case is over, short of some finalizing documents. However if you impasse, then you will be looking forward to a trial. Once an impasse occurs, then it will take time to get the trial set on the judge’s calendar. In some cases, it could take months before parties are before a judge. In any event, during the in between time, in most cases, parties are going through additional trial discovery, such as depositions in anticipation for the final fight.

No matter what county you are in, divorce cases can go a multitude of ways, and it really depends on the parties. If you are amicable and communicate well with the other party, everything could be complete within a matter of months, or even weeks. If you are adverse to the other party, and you both will likely fight, then it could take months, if not years in some cases, to obtain a final judgment of divorce. If you, or someone you know, is about to embark on a divorce or has been served with papers, don’t hesitate, call Men’s Rights Law Firm today.

RELOCATION WITH CHILDREN AFTER FINAL JUDGMENT

Once you have received a final judgment in your divorce or paternity action, you may decide that you wish to move and to take the minor child(ren) with you. Florida Statute 61.13001 controls a parent’s ability to relocate with the minor child(ren). If the parents agree to allow the minor child(ren) to relocate, then a new parenting plan which details the new timesharing arrangement, who will be responsible for transporting the child(ren) for timesharing, and a new child support amount should be drafted and approved by the Court.

If the parents are unable to agree, the parent wishing to relocate would need to file a Petition to Relocate. The Statute sets forth very specific items which must be addressed in the petition including, but not limited to, a description of the intended new residence, the date of the intended move, and the reasons for the proposed move. The petition must also include a proposal for a new timesharing plan for the parent who is not relocating. The petition must be signed under oath by the parent wishing to move and served upon the other parent.

Once served, the non-relocating parent has twenty days to file an objection. If no objection is timely filed, the Court may presume that the move is in the best interest of the child(ren) and grant the petition. If an objection is filed, the Court will hold an evidentiary hearing or trial to determine whether or not the relocation is in the best interests of the child(ren).

The most important thing to remember is that the Court will base its decision using the best interest of the child(ren). The Court must consider many factors in making this determination. If the parent wishing to move can prove that the move is in the best interests of the child(ren), it then becomes the job of the non-relocating parent to prove that it is not in the child(ren)’s best interest to move. The Court uses a preponderance of the evidence standard.

If you are considering relocation, talk to Men’s Rights Law Firm to learn more about the steps that you will need to take.

WHERE DO I FILE MY PATERNITY CASE?

When clients prepare to file a petition to determine paternity, there is often confusion about the proper location within Florida (venue) to file the case. Many people mistakenly believe that the only place the petition can be filed is in the county where the mother and child live. However, according to Florida Statute 742.021(1) the proceedings must be in the circuit court where the plaintiff resides or the county where the respondent resides. This means that if one parent wishes to file a petition to establish paternity, timesharing, parental responsibility, child support, etc., the parent filing can file the case in the Florida county where they live or the county where the other parent lives.

If the parents live in different counties, the parent filing should carefully consider where to file the case. Some issues to consider, aside from personal convenience, are the age of the child and possible witnesses. For example, if the child is school-aged, it may be necessary to bring a teacher to court for testimony. If the child attends school in Orange County and the case is filed in Lee County, the teacher will be required to travel several hours in order to testify. The party asking the witness to travel may need to pay for travel expenses. The same consideration would be given to a very young child or a child with special needs that may require a doctor or caregiver to testify. It may be better to inconvenience yourself than to risk a witness being resistant or unable to travel or too expensive to bring to court because of the distance. If you are unsure about where to file your case, you should consult Men’s Rights Law Firm to discuss options and strategies prior to filing to be sure that you make the best decision. The initial telephone consultation is free.

How do child support and alimony payments get taxed in the U.S.?

Pursuant to Publication 504 from the Internal Revenue Service (IRS), child support is not considered taxable income to the parent receiving support payments on behalf of a minor child. Moreover, the receiving parent cannot consider the payments as income for purposes of trying to utilize the child tax credit. With that said, child support is also not tax deductible to the parent ordered to make the support payments for a minor child. For the parent who has the obligation of paying child support, he or she simply reports their income as they normally would on their taxes.

This concept differs greatly from alimony, as spousal support payments are tax deductible to the payor, and tax includible to the payee. More specifically, pursuant to IRS Topic 452, amounts paid to a spouse or a former spouse under a divorce or separation instrument (including a divorce decree, a separate maintenance decree, or a written separation agreement) may be income for federal tax purposes. Alimony is deductible by the payor spouse, and the recipient spouse must include it in income.

If you are a Husband/Father who is having difficulty with child support or alimony, don’t hesitate to contact Men’s Rights Law Firm to help determine your rights.

Do child support payments increase over time?

Whether you are going through a proceeding such as Paternity, Divorce, or a Title IV-D action, child support in Florida is calculated using the Florida Statutory Guidelines as explained in Florida Statute 61.30.

Once child support is calculated within your action and adopted by final judgment, the child support will remain that amount, unless modified, generally until the child reaches the age of 18 years; or not to exceed 19 years, if the child is still a dependent high school student performing in good faith with a reasonable expectation of graduation before the age of 19. F.S. § 743.07.

Other exceptions to termination at 18 years of age may include prolonged child support obligations if the child is dependent and the dependency is because of a mental or physical incapacity which began prior to such person reaching majority. Either way, the amount would remain in effect from the last Court Order/Final Judgment on the court file.

So, do child support payments increase over time? One simple answer would be, not unless your previous Order/Final Judgment is changed. Or maybe you fall behind and you start incurring arrears. Arrearage payments could be tacked onto your on-going support obligation. Also, if you are making more money now than you did at the time the child support was last calculated, it is possible for your child support to go up. In paternity and divorce matters, one of the parties would have to file a Supplemental Petition for Modification and allege, among other things, that there has been a substantial change in circumstances. In those cases, “the guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.” F.S. 61.30(1)(b).

In those cases, modification requires at least one of the parties to bring new proceedings before the court requesting such a recalculation of child support. On the other hand, in Title IV-D cases, pursuant to F.S. 409.2564(11)(a) and F.S. 61.30(1)(c) child support may be reviewed without the necessity of providing substantial change of circumstances and be modified if the support differs by at least 10% but not less than $25.00 from the amount to be awarded under F.S. 61.30. Furthermore, “the Department of Revenue shall review child support orders in IV-D cases at least once every 3 years when requested by either party, or when support rights are assigned to the state under s. 414.095(7), and may seek modification of the order if appropriate under the child support guidelines in s. 61.30. Not less than once every 3 years the department shall provide notice to the parties subject to the order informing them of their right to request a review and, if appropriate, a modification of the child support order. The notice requirement may be met by including appropriate language in the initial support order or any subsequent orders.” F.S. 409.2564(11)(a).

No matter which type of case you have, child support is calculated pursuant to F.S. 61.30. If you, or someone you know needs help with an initial or post judgment matter concerning your child support, don’t hesitate, call Men’s Rights Law Firm today.

How can one give up their parental rights?

Parental rights are fundamental, protected by the Florida Constitution, and thus are not easily relinquished. In fact, there are very limited instances in which a parent may give up their parental rights voluntarily. Sometimes we are asked whether giving up parental rights would result in eliminating the responsibility for supporting a child, and while the answer is that if one were able to give up their parental rights the result would be that parental responsibilities would also disappear, the ability to simply walk away from a child without repercussions is largely unknown under Florida law. Once a legal parent has been established (maternity is established at birth, paternity is established by marriage at the child’s birth, or by court order), disestablishing it is limited. Four methods (adoption, termination, judicial disestablishment, death) are potentially available.

• Death
o This one is obvious. If you die, you no longer have parental rights or responsibilities, other than those that you may have contracted for which continue beyond death (Trust Agreement, insurance policy, contractual obligations, etc.).
o Grandparental rights, which are extremely limited, are not automatically terminated upon the death of a parent.

• Judicial Disestablishment of Paternity
o If you agreed to become the legal father of a child because you were told that you were the biological father, and then later you learned that someone other than you is the biological father, then you can petition the court to disestablish paternity.
o Only a male may do this. There is no female equivalent.
o Any DNA testing that you will base your claim upon must have been performed within 90 days of filing the petition.
o You must be able to show that any financial responsibility that has been judicially required of you has been satisfied to date, or that any arrears are the result of being unable (not unwilling) to pay.
o You cannot have previously acted to block the true biological parent from asserting parental rights.
o You cannot have voluntarily assumed, through marriage to the mother or adoption or otherwise, parental rights and responsibilities for the child.

• Judicial Termination of Parental Rights
o If you have been accused of egregious abuse, neglect, or abandonment, the state (through the Department of Children and Families) can have a court terminate your parental rights, which can be accomplished by consent or after a trial.

• Adoption
o If another person is willing to voluntarily assume your parental rights and responsibilities (such as a future spouse of the mother of your child) then you can consent to the adoption.
o Under those circumstances, your parental rights and future responsibilities are terminated when the court terminates your rights (a necessary step in an adoption proceeding, which may happen before or at the same time as the completion of the adoption).
o You cannot simply consent to a potential adoption that may or may not take place in the future. The adoptive parent must be known before you can consent to the adoption.

Duke v. Duke

In Duke vs. Duke, The trial court erred on the face of the Final Judgment of Dissolution of Marriage (no trial transcript was provided, so only errors appearing on the face of the order could be remedied):

1) Alimony: In awarding alimony, the court failed to impute income to the wife based upon income that she would have realized from items awarded to her in equitable distribution. The case is remanded for the trial court to determine how much interest she could earn from the assets without invading the principal;

2) Attorney’s fees: The trial court failed to make sufficient findings to support the award, so the case is remanded for those findings. However, The findings of need and ability to pay were not disturbed;

3) Life insurance: The trial court failed to make specific evidentiary findings regarding the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant the requirement for security of the obligation; and

4) Parenting plan: the trial court failed to make the required findings under 61.13, and the timesharing schedule lacked specificity

Duke v Duke

Do fathers have the same parental rights as mothers?

The answer to this question is not a simple one and can vary depending on the facts, as well as which statute you are focusing on. For the purposes of this blog, the focus will be on a man’s parental rights under Florida Statute 744, and how it differs generally from Florida Statutes 61 and 742.

Generally speaking, if a child is born out of wedlock, then there may only be a presumption of paternity if the putative father is listed on the child’s birth certificate. Under chapter 742, this doesn’t necessarily mean that the father is simply given all relevant rights of child rearing however. Under this section of the law, a man will need to file a petition with the circuit court to establish paternity. Until that time however, a mother may be considered the natural guardian and may effectively do whatever she pleases, including taking the child out of county or State without your permission or knowledge.

However, if the child is born during the course of the man’s intact marriage to the mother, then the child is presumed to be born of that marriage. This means that a Father whom is about to go through, or is going through, a divorce may begin that process with the same rights to the child as that of the mother. This applies even if a child is born to an intact marriage by a man other than the husband. In that case, the actual biological father may be entitled to even less, as the Husband would be considered the legal father and presumed to be the biological father.

Finally, how does chapter 744 differ from the above and do fathers have the same parental rights as mothers?

Florida’s guardianship statute begins with a very similar message as the above in that chapter 744 provides, “…the “mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child…” Fla. Stat. §744.301(1). However, the guardianship statute differs ever so slightly in that even though it appears to favor the mother on its face, the application of that statute in the case law appears to provide greater rights to a putative father than the other two previously mentioned statutes. For example, in Stewart v. Walker and State v. Earl, “…when an unwed father demonstrates and carries out the requisite settled purpose to be a father, he comes within the first sentence of the statute, making him a natural guardian along with the unwed mother.” Stewart v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009). See also, State v. Earl, 649 So. 2d 297, 298 (Fla. 5th DCA 1995).

Regardless of whether you are a husband or a father, or both, don’t hesitate to contact Men’s Rights Law Firm today to help determine your rights. 239-829-0166.

HOW CAN WE PREVENT THE STATE FROM TERMINATING OUR PARENTAL CUSTODY RIGHTS TO OUR CHILDREN?

So, DCF has begun proceedings to terminate your parental rights (TPR) because of alleged egregious abuse, neglect or abandonment. If you have previously been granted a case plan, and you simply did not previously follow it, you have the opportunity to delay the TPR by making an honest effort to comply with the case plan. If you do not have a case plan, though, your only method of delaying TPR is to insist upon and then participate in the TPR trial. If you are able to prevail in the TPR trial then you may instead be granted a case plan to reunify, and if you complete the case plan, then TPR will be avoided. At worst you will have delayed the TPR until after the trial.

Case plans where egregious abuse, neglect or abandonment are concerned typically have tasks that include parenting courses, drug/alcohol abuse treatment, and mental health treatment. Many parents are unable to go through with the tasks; as they are often difficult, and many people would rather continue with the unhealthy behavior rather than care for their children. But if the penalty for refusing to comply with the case plan includes TPR, then many parents change their attitudes and instead start working in earnest on the case plans. Successful completion of the case plan will most likely result in an end to the TPR proceedings, in favor of reunification efforts.

I have met parents who, when faced with a choice of either discontinuing their drug usage, for example, or losing their children, will turn to me and say “can I really continue using drugs if I give up my kids?” That is a situation that will shock most people who hear that, but I have come to learn that the reality of addiction is that some of those who are addicted would rather continue in their addiction than get treatment. Or perhaps the desire to raise children is less powerful than the desire to continue using drugs at that particular moment in time. Whatever the reason, the negative motivation must be overcome if one is to avoid TPR. Contact Men’s Rights Law Firm to discuss your options today. 239-829-0166.