Representing Jacksonville for 40 years

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

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