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.

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.

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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

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.  

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.

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.

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.

In you are injured in an auto accident due to the fault of another driver, you should not accept a check from that at-fault driver or his/her insurance company…at least not immediately.  Instead, you should consult legal counsel first, and take several other steps, before accepting any form of payment for your injuries and property damages. Accepting a check right away may unfortunately result in your receiving only a fraction of the compensation to which you are truly entitled. 
If you are involved in an accident that is clearly the fault of another driver, then that driver or his/her insurance company may send you a check in an attempt to settle the case very quickly. While it may be very appealing to accept the check, avoid dealing with a legal dispute, and put the entire issue behind you, this may not be the best decision. It is important to realize that this check represents only a first offer. If the check comes from an insurance company it is often a low offer, as the insurer is striving to pay as little money as possible.

Before you accept payment of any kind from an at-fault driver or an insurance company other than your own, there are several key steps you should take, in order to ensure that the payment you receive fully compensates you for all of your losses.

The Right Steps

First, you should consult an auto accident attorney. Your attorney can help walk you through what you should do, remind you of the things you should avoid doing, and help you analyze and assess settlement offers from the driver or his/her insurance company.

Another key step to take before accepting such a check is seeking medical attention for your injuries. Not only should you see a doctor, but you should also make sure that you’ve completed your treatment regimen and your doctor has released you from care, before making any decisions on settlement.

In addition, you need to know what your property losses are. If your car was damaged, you should take it to a reliable auto service provider to get an estimate on repairs. If your vehicle was totaled, consult a reputable resource like Kelly Blue Book or NADA to determine the value of your vehicle. Only after you’ve completed these steps will you know whether that check sufficiently covers your property losses and all of your medical bills.

It always important to know what exactly that check you’ve received represents. Any offer of payment from the other driver or his/her insurer also includes a document known as a “release.” The release essentially says that, by accepting the check, you waive your right to sue. While you may think the check you’ve received constitutes only a partial payment, the fine print of the release may say something very different. It is this aspect of the case where your attorney can be an invaluable resource.

Auto insurance companies are experienced at settling cases where their clients have injured other people for as little money as possible. They are sophisticated and knowledgeable in these types of matters. That’s why you if you find yourself in this situation you should consult a Florida auto accident attorney, and put a skilled, capable advocate on your side to ensure that you receive full compensation for your losses.

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If you are a Florida resident and thinking about getting a divorce, there are several things you should keep in mind about Florida’s divorce laws. These items are important aspects to saving you time, sanity or both.

(1)   Florida is a “no-fault” divorce state 

This means that you do not have to allege that your spouse was abusive, adulterous, abandoned you, or was at fault in any way. In order to file, you need only claim that your marriage is “irretrievably broken.” If you and your spouse agree about the irretrievable breakdown of your marriage, and you have no children, the court will likely accept this allegation without requiring additional steps. If you have children, or your spouse denies that the marriage is hopelessly broken, the court may order counseling with religious minister or marriage counselor. Learn more about “no-fault” here.

(2)   Florida has certain residency requirements

In order to seek a divorce decree from a Florida court, at least you or your spouse must be a Florida resident or a member of military stationed in Florida. In addition, you (or your spouse) must have lived in Florida, or been stationed in Florida, for six months immediately preceding your filing for divorce.

(3)   Filing your divorce petition

You should file your divorce petition in the county where the Florida resident lives. If you and your spouse live in different counties within Florida, you may file in either county. After you file, the court will notify your spouse that you’ve filed, and give him/her time to respond. If both of you agree about property division, spousal support and child custody, the divorce may proceed without going to court. Otherwise, the court clerk will set a hearing date. If you have children, Florida requires each of you to attend a seminar discussing issues related to children and divorce.

(4)   Options exist if you cannot locate your spouse

If you no longer know your spouse’s whereabouts, you may still seek a divorce. Florida requires you to first make a “good faith” search to locate where your spouse lives. This includes multiple steps, including contacting the Department of Motor Vehicles, quizzing family and friends, and publishing notices in a proper newspaper for a stated period of time. After that, you must file an additional motion with the court, followed by a hearing where you appear before the judge, and the court will decide whether or not to grant the divorce.

(5)   Dividing property

The law allows each spouse to keep his or her “non-marital” property that he/she brought into the marriage and “non-marital” debts brought into the marriage. If you and your spouse do not agree on a division of assets and debts on your own, the court will craft an “equitable” distribution of the marital property. This generally means equally, although not always.

(6)   Determining spousal support        

A Florida court may award spousal support, or alimony, if it determines that the award is “well-founded.” Courts look at several factors to determine if a support award is appropriate. These factors include the length of the marriage, the age and health of each spouse, and the standard of living the couple enjoyed during the marriage.

(7)   Determining child custody and child support

If you and your spouse have not worked out an agreement on custody, the court will determine what is in “the best interest of the child.” Generally, courts will assign the parents joint custody of the children, although the child may reside primarily with one parent. The law sets a guideline for child support. This calculation factors in the income of each parent, the number of children, daycare expenses borne by each parent and, insurance expenses (on the child) borne by each parent.

(8)    Divorce mediation may be helpful

Mediation may be a viable alternative to litigation for couples that cannot agree upon all issues related to property division, support, or child custody. In mediation, a neutral third party helps the spouses work through their disagreements and discuss potential solutions and possible outcomes a court might order. Unlike certain types of arbitration, mediation is not binding, so you are not required to accept the conclusions reached through mediation; you may simply opt to litigate in court instead.

(9)    A simplified divorce process exists for certain couples

In certain very specific circumstances, the law permits couples to seek a “Simplified Dissolution of Marriage.” To qualify, you (or your spouse) must meet the regular residency requirements (and have proof of residency available), both of you must agree that the marriage is irretrievably broken, you must have no minor children from the marriage (and the wife must not be pregnant), both of you must decline to seek alimony, and you must both agree on all aspects of property division. In these cases, you may be able to go from filing your petition to having a final hearing in less than a month (although the hearing date must be at least 21 days after the date of the petition.)

(10)    The process may be very fast, or take a very long time

If you and your spouse file an uncontested divorce (where you agree on all aspects of property division, spousal support and child custody/support,) and your petition and response meet all the pleading requirements established by Florida law, your divorce may only take a few weeks. If, however, your case is contested and requires full litigation, and you file in a county with a crowded court docket, your divorce may take more than a year to finalize. Read more about how long a divorce may take Here

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As a general rule, a property owner cannot use deadly force to defend his/her property. As a matter of public policy, most jurisdictions, including Florida, place a higher value on the life and safety of people than on property, even if those people are trespassing onto the property of another person at the time of their injuries.

Florida does recognize certain exceptions to this rule, however, as spelled out in Fla. Stat. 776.012. One exists when a person not only intrudes onto the property of another, but also presents a risk of death or “great bodily harm” to the owner or other occupants of the property. Another exception exists in situations where the intruder is committing a forcible felony. Fla. Stat. 776.013 clarifies the first of these exceptions by explaining that the law presumes a person to be in imminent fear of death or great bodily harm when an intruder unlawfully and forcefully enters an occupied residence or automobile. Section 776.013, is sometimes called Florida’s “no retreat” law, and says that, when an intruder poses an imminent harm, the property owner has no duty to retreat from the intruder.  Instead, they may use deadly force if the owner reasonably believes deadly force is necessary to prevent death or great bodily harm.

The law acknowledges four circumstances where the “stand your ground” right of Section 776.013 does not apply. These occur when: (1) the intruder was also a habitant of that residence (except in cases where an applicable restraining order exists), (2) the intruder entered the residence to remove someone over whom the intruder had legal custody, (3) the owner was engaging in an illegal activity inside the dwelling, or (4) the intruder was a law enforcement officer who had properly identified him/herself.

In practical terms, if someone forcibly enters your occupied property, you generally may assume that the intruder means to cause you serious harm or death, and use deadly force to defend yourself. This right, however, does not exist if the intruder is your roommate, or your neighbor who has entered to retrieve his daughter, or you’re running a methamphetamine lab in your basement, or the intruder is a police officer who yelled “Police! Open up!” before breaking down your door.

It is important to note that these rules regarding the use of deadly force apply in situation where the residence is occupied. A homeowner may not employ mechanisms that would deploy deadly force to defend unoccupied properties (such as deadly weapons activated by trip wire or remote.)

If you’ve been accused of a crime, or sued, in the course of defending yourself inside your home or vehicle, you should contact a Florida attorney about your case. Florida’s “stand your ground” rules are relatively broad and may create a valid defense for you.

Punitive damages are only warranted in a particular subset of successful personal injury lawsuits. In order for a court to permit an award of punitive damages, it must first conclude that the defendant’s behavior was particularly outrageous or reckless.

For example, in auto accident cases, punitive damages may enter the equation if the case establishes that the defendant: is charged (or could be charged) with manslaughter related to the accident, was legally intoxicated at the time of the accident, did not stop at the scene of the accident (hit-and-run,) was driving at a reckless rate of speed, was engaged in criminal activity at the time of the accident, or knowingly failed to maintain his or her vehicle in a safe condition.  In medical malpractice cases, punitive damages may only enter the picture if the patient proves that the health care provider intended to inflict serious harm to the patient. In product liability cases, the injured person must show that the defendant’s willful, wanton or reckless behavior caused the injuries at issue.

The amount punitive damages will fluctuate based upon the specifics of each case. A defendant’s especially outrageous or malicious action would likely trigger a larger punitive damages award. The amount of punitive damages awarded in similar cases previously decided would figure in as well. Also, in deciding punitive damages, juries may look at the defendant’s net worth (which is not admissible in compensatory damages considerations).

However, Florida does place certain restrictions on punitive damages. Florida courts recently ruled that a punitive damages award so large that it would force the defendant into bankruptcy is not permissible. Additionally, Florida statutes limit punitive damages, in most cases, to the greater of either: (1) three times the compensatory damages award, or (2) $500,000.  However, if the fact finder (the jury, or the judge in a bench trial) concludes that the defendant’s motivation was strictly “unreasonable financial gain,” and the defendant (or certain agents, in the case of corporations) knew of the unreasonably dangerous nature of the conduct or extremely high risk of injury, then the cap jumps to the greater of four times the compensatory award, or $2 million. If the fact finder concludes that the defendant specifically intended to harm the plaintiff, the Florida Statutes place no cap at all on punitive damages.

The type, and amount, of damages you may be entitled to in a personal injury case can seem complicated and confusing. Our personal injury attorneys are well-versed in all types of awards and experienced at pursuing all damages owed to injured people. Please call for a free, no obligation consultation to discuss your injury case.

Child support is intended to allow children to receive sufficient financial support to meet their basic living needs, such as food, clothing, shelter and healthcare, and to enjoy the wealth of both of their parents. The public policy in Florida strongly prioritizes children’s receipt of financial support from both parents. For that reason, Florida law has strict guidelines regarding child support, and takes a stern approach to nonpayment of child support.

In Florida, the amount of child support is set by following a mathematical formula that factors in both parents’ incomes and certain expenses (such as healthcare insurance premiums and daycare payments.)  Beyond just incomes and expenses, though, the formula also looks at the living situation of the children. If the non-primary custodial parent has the child overnight at least 20 percent of the time, that will trigger a reduction in the amount of child support.

A parent with a court-ordered support obligation may not alter or cease those payments absent a court order that permits the change. Florida law considers your child’s needs to be paramount, meaning that your ex’s obligation to support his or her child comes first. Even if your spouse has encountered financial hardship, whether from large new financial obligations (i.e. a major illness or accident,) a severe reduction of income (a job loss,) or the child’s living situation changes (the child begins living primarily with your spouse) your spouse may not simply stop paying child support or pay less than the full amount. In order to alter child support, you must ask a court to order a change. Florida law allows courts to modify child support if the parent with support obligation can prove that he or she has undergone a change in circumstances that is substantial, permanent and involuntary.

If your spouse is withholding child support, you should follow the appropriate legal channels to notify the authorities of your spouse’s failure to pay. Florida has several options for parents who do not pay child support, and the penalties are substantial. A parent who is derelict in paying child support may lose his or her passport and/or driver’s license, may have liens placed on property, have paychecks garnished or have bank accounts frozen.

One thing you should be certain not to do is withhold visitation rights. Regardless of your spouse’s improper actions, you should be certain to follow all court-ordered obligations you have under the terms of your divorce. The law considers the court orders regarding visitation and child custody to be independent obligations. Your failure to follow the court’s visitation order can be grounds for your being held in contempt of court regardless of whether or not your spouse is paying child support.

If you are facing a spouse who has stopped paying child support, you should consult with an attorney who is familiar with the law and the courts. Our Florida child support attorneys are experienced and knowledgeable about cases just like yours, so contact our office today to learn about your rights and options.

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