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Archive: February 2013

February 13, 2013

I Have a Child out of Wedlock – What are my Rights as a Father?

Article By: William Dorsey
Contact Us With Your Paternity and Family Law Questions.

When a child is born as a result of a marital union, the law presumes that the husband is the child’s father and grants the husband parental rights accordingly. If you and your child’s mother are not married, you may possess certain rights under the law, depending on your situation. 

Until legal paternity is established, you have no rights.

Under Florida law, if a child is born out of wedlock, the mother is the sole “natural guardian” until a legal determination of paternity occurs. Neither your biological relationship with your child, nor the closeness of your relationship with the mother, will alone establish your paternity.  You have no legal relationship to the child.  You may not be noticed of an action by the mother to terminate your parental rights and place the child for adoption unless you register with the Florida Putative Father Registry nor can you contest any custody matters regarding the child.

Multiple avenues exist for establishing paternity.

The simplest opportunity for ensuring that legal paternity is established occurs at birth. At the hospital, when the child is born, you and the mother can sign a Form DH-511 “Paternity Acknowledgment.” Both of you have to sign before either two witnesses or a notary. When you do this, your name appears on the child’s birth certificate and your child has a legal father right from birth.

You and the child’s mother can acknowledge paternity after the birth by completing a Form DH-432 “Acknowledgement of Paternity.” Again, both of you must sign and must do so before two witnesses or a notary. The Department of Vital Statistics will amend the child’s birth certificate to add your name as the father.

Another option is what’s called “legitimation,” which involves you and the mother marrying and updating the birth record through the Office of Vital Statistics. This involves completing Form DH-432 and submitting the completed form, along with a copy of your marriage certificate, to the Office of Vital Statistics.

Alternately, paternity may be established through genetic testing. The Florida Office of Child Support can assist with accomplishing this. Utilizing this avenue has the advantages of allowing you to avoid going to court, and avoid paying for the test. Using a DNA sample from the inside of the cheek of each of: you, the mother, and the child, the laboratory determines if you are the father. If the test identifies you as the father, the Office of Child Support issues an Administrative Order of Paternity, which has the same legal effect as a court order.

A court may also establish paternity. Typically, courts are involved if either the mother or the alleged father contests paternity. If both the mother and alleged father agree regarding paternity, the two may sign a consent order which, once adopted by court, establishes paternity. Once you’re established, by any of these means, as the legal father of the child, you receive all the same rights as if you and the child’s mother were married when the child was born, such as petitioning for custody of the child. You also take on all the responsibilities of parentage.

Contact us today for help with the process to be the legitimate father of your child.

February 13, 2013

What are the Tax Advantages of Paying Child Support Compared to Paying Alimony?

Article By: William Dorsey
Contact Us With Your Divorce and Alimony Law Questions.

Fiscally shrewd ex-spouses know that a world of difference can exist between characterizing a payment as alimony, as opposed to child support, when tax time comes around. That’s because periodic alimony payments are usually income tax deductible, while child support payments are not. The Internal Revenue Service, however, has a menagerie of requirements you must meet in order to qualify for the alimony deduction.

First, the payment you make must be pursuant to a divorce or settlement agreement that is contained in written form. Additionally, you and your spouse must be completely separated from each other. This means you must live in separate residences, and must not file a joint federal income tax return. If you still live together, the IRS may contend that the money is actually paying for your share of the household expenses (such as utility bills,) and disallow the deduction.

Also, the payment must be monetary – either cash or check. The payment must indicate that it is for alimony or spousal maintenance, and is to your ex-spouse or for her benefit. Giving your ex-spouse property (such as a car), does not constitute alimony in the IRS’s view. However, you can pay her bills for her. As long as it is a cash or check, for her benefit, you can pay her mortgage bill, her education tuition, her medical expenses, her taxes or the premiums on a life insurance policy she owns. To ensure this approach is deductible, your ex-spouse needs to send you a written document informing you that she would like you pay a certain a certain third party (or parties,) and that the payment is in place of paying her directly.

Payments made on a property may or may not be deductible as alimony. If you allow your ex-spouse to live in a property you own, neither your mortgage payments on that property, nor your lost rental income, constitutes alimony. However, if you and your ex co-own a property, and you pay the full mortgage payment on that property, you may deduct half of those payments as alimony.

Make sure your payments are not designated as child support or tied to events in your children’s lives. The documents must state that the payments end upon your spouse’s death. As an example, if your arrangement says you must pay your ex-spouse $6,000 per month, until your child turns 18, then $2,000 each month thereafter, the IRS will view only $24,000 of the annual payments as alimony, and will deem the other $48,000 you paid each year as non-deductible child support. Note that the IRS can go back and re-classify past alimony as child support, retroactively disallow the deductions, and declare that you owe back taxes.

Furthermore, be careful about “front-loading,” or paying extremely large amounts in the first months or years of the arrangement. Section 71 of the Internal Revenue Code prohibits front-loading alimony payments in the first three years after you and your spouse separate. The reason for this rule is to prevent taxpayers from hiding property settlement payments under the guise of alimony.

Contact us today for your Alimony or Divorce Consultation

February 13, 2013

My Husband Won’t Pay Alimony. What Do I Do?

Article By: William Dorsey
Contact Us With Your Divorce and Alimony Law Questions.

The terms of alimony payments from a husband to his wife, in a divorce proceeding, may be arrived at through two ways. Either you and your ex-spouse agreed to an amount and term (duration) of alimony, or the court decided how much you will receive and for how long. Either way, the terms of alimony are included as part of the final order of divorce. This means that your ex-spouse is legally bound to keep making his alimony payments to you until the term expires (in cases of limited-duration alimony,) or until a court modifies the terms of alimony to relieve him of his obligation to pay.

If your ex-spouse is not paying, your primary option, assuming you cannot resolve the impasse between yourselves, is to return to court. An ex-spouse entitled to receive alimony, but not receiving his/her payments, may ask a court to hold their ex-spouse in contempt of court, or request that the court order the ex-spouse to show cause why he/she should not be held in contempt.

Courts typically hold a hearing to determine if a contempt citation is appropriate. At the hearing, you have the burden of proving to the court that a valid alimony award order exists and that your ex-spouse is not compliant with that order. Once you successfully make this showing, the court will require your ex-spouse to try to show why he/she should not be held in contempt of court. If the court finds your ex-spouse in contempt, it has a wide range of options, including incarcerating your ex-spouse as punishment. If the court jails your ex-spouse for civil contempt, the judge will decide on an amount which, if ex-spouse pays, will “purge” his contempt and get him out of jail. The court also may find your ex-spouse in indirect criminal contempt and issue a jail term without a “purge amount.” For this punishment, though, the court must find that he/she had the money to pay the alimony but willfully or intentionally chose not to pay.

Less extreme means also exist. The court may suspend your ex-spouse’s driver’s license and/or any professional licenses he/she may hold (such as a medical license, law license or insurance license.) If the court decides your ex-spouse lacks sufficient assets to pay his past-due alimony, but your ex-spouse is employed, the court may order his/her employer to garnish his/her wages. Other tools include denying your ex-spouse a passport, ordering offsets against his/her federal and state tax refunds, and attachment and garnishment of his/her financial accounts, which includes his/her IRAs.

Furthermore, you may ask the court to reduce the back-owed alimony to a money judgment. Once the court grants this request, you may file the judgment in any county where your ex-spouse owns property. This creates a judgment lien against the property, and your ex-spouse cannot sell or transfer that property until he/she pays the alimony debt. You can also seek a writ of execution. This allows a sheriff to seize property your ex-spouse owns in that county and sell it at a sheriff’s sale, with you receiving the proceeds from the sale.

Contact us today for your Alimony or Divorce Consultation

February 6, 2013

What Should I Do If An Insurance Company Contacts Me?

Article By William Dorsey.
Contact Us With Your Personal Injury Law Questions.

Many people who are injured in auto accidents worry about taking the proper steps, and avoiding missteps, related to their case. This is a very valid concern, as the things you do, or avoid doing, in the days and weeks after your accident may radically alter the amount of compensation you ultimately receive.  insurance calls after personal injury

If you are contacted by an insurance company, other than your own, it is important to keep in mind that this insurance company is not a court or an arbitrator, and it is not their job or objective to determine the true amount of your damages. They are a business whose job it is to minimize their payouts. They do not seek a “just” outcome; they seek the most cost-effective outcome for them.

To this end, they may employ wide range of tactics and methods to accomplish this goal. It is important to prepare yourself accordingly. First, you should strongly consider retaining an attorney to represent you. These cases often involve technical knowledge of the law and legal procedure that most lay persons, even bright, educated lay persons, do not have. The insurance company has attorneys with this knowledge and experience. You should seriously contemplate having one, too.

Also, you should avoid talking to the insurance company. This includes that company’s adjusters or their lawyers. These people may try to record what you tell them, or twist your words to try to place them in a different context, or give them a different meaning that you did not intend. They may try to persuade you to admit that you were at fault, either partially or fully. They may also try to convince you to sign a written statement, which they may use against you later in court. It is important that you make no statement, or sign any document, at the behest of the insurance company unless your attorney is present, or you have consulted your attorney in advance. Remember, their goal is to minimize their payout, and the point of eliciting these oral or written statements from you is to use them against you later to reduce the value of your case.

Alternately, representatives of the insurance company may try to pressure you into settling your case. They may use a variety of techniques to settle your case for less than it is actually worth. It is important that you avoid this, because once you agree to, and accept, a settlement, the insurance company will also make you sign papers where you relinquish your right to bring future lawsuits against as a result of this accident. That means that, even if you later discover that your injuries are far more serious than you originally thought, you still cannot re-negotiate your settlement or reopen your case. By avoiding entering into an unwise early settlement, you can take time to consult medical professionals, and an attorney, to ensure that you, and your team of experts, have a complete picture of the nature and extent of your injuries, which is vital to determining what settlements you should accept, or reject.

February 6, 2013

What Should I Do if I Need Money While My Case is Still Pending?

Article By William Dorsey.
Contact Us With Your Personal Injury Law Questions.

Often people who are injured due to the negligence, professional misconduct, or other unreasonable actions of others, and who become plaintiffs in civil lawsuits, have limited financial means.  Perhaps the injuries you suffered as a result of another driver’s negligence prevent you from working, destroying your ability to provide for yourself and your family. Perhaps a doctor’s medical malpractice has harmed you to such an extent that you need 24-hour nursing care, and are unable to care for yourself or your children. In many cases, plaintiffs in civil lawsuits are harmed not only by their injuries, but also by the severe financial hardships those injuries place on the injured person and his/her family.Personal Injury Borrowing Money

First, it is important to know what options are not available to you. Your lawyer cannot lend money to you. Ethics rules that govern all attorney conduct prevent your lawyer from assisting you in this way. This rule exists to prevent you and your attorney from being in an adversarial position to one another, which could happen if difficulty arose within the lending transaction, and would not be in your best interest. Along these same lines, your attorney cannot pay your medical expenses, for similar reasons. Your lawyer can, however, retain, and pay for, medical experts. These experts, including physicians, can examine you and diagnose you, or otherwise give his/her opinion about your injuries.

One thing your attorney can do to ease your up-front financial burden is to agree to take your case on what’s called a “contingency” basis. Attorneys who advertise that “you pay nothing unless we win your case” are offering a contingency arrangement. In this type of arrangement, you pay your lawyer nothing up front to retain him/her, but rather pay him/her a percentage of your recovery at the conclusion of your case. In many contingency arrangements, the percentage differs depending on the point in the legal process that the case resolves. For instance, an attorney working on a contingency fee often collects a smaller percentage if a case settles shortly after the initial filings than if the case settles immediately before trial. This allows you to obtain quality legal representation without spending large up-front sums, such as up-front retainer fees, which are common in other types of cases.

Additionally, a realm of businesses exists to provide money to people who are plaintiffs in pending legal cases. Some of these businesses may pay you money without requiring you to pass a credit check, and may only demand repayment when, and if, you win your case. These businesses typically offer their services to people who are plaintiffs, or are planning to file a complaint in a civil matter, and are represented by an attorney. However, the rates charged by these businesses typically exceed those offered by traditional lenders. Generally, these funding options are resources of last resort, and may not be advisable for you. You may want to consult your attorney before utilizing one of these services.

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