There are now more children born to single parents than to parents who are married. Florida has a statute dealing with unmarried parents that lists the father on the birth certificate. A lot of unmarried couples end up breaking up and having to deal with parental time-sharing issues along with child-support.

What happens when the mother declares during these proceedings that the "father" really isn't daddy? If the father wishes to contest that declaration and continue to be the daddy to a child that is not his, he now has more ammunition to fight that battle. The recent 2nd District Court of Appeal case of Van Weelde v. Van Weelde illustrates how this can be done.

If the mother signed an FS 382.013 affidavit naming someone as the father, she is prevented from claiming that man isn’t the father at a later date. Even if genetically the man is not the father, he can still establish his parenting rights, including time-sharing and joint custody. Obviously, he also will have the obligation of supporting this child throughout life as a minor. This case is good news for men who are faced with such challenges during litigation with the mother.

Florida's paternity statutes allow a paternity lawsuit to be filed prior to a child being born. In theory, the Judge in the case can award attorneys fees and litigation expenses before the child is even born and a determination made that the person suit is actually the father! This aberration can now be cured through noninvasive DNA paternity testing using only blood samples from the pregnant mother and the purported father. The old amniocentesis method, which involves some risk to the baby and mother, is now old technology. New techniques allow laboratories to search for and find the babies cells in the mother's blood. DNA testing can then be done on those cells and the mother and father. Such DNA testing now all but guarantees that paternity can be established prior to the baby being born. Persons facing paternity issues and having questions should contact an experienced Family Law attorney.

Florida has a series of statutes that allow a parent to disestablish paternity of a child. Chapter 742 of the Florida statutes contains provisions on the procedures for doing this. This series of laws was designed to address the growing problem of fathers being sued for support for children that they were not the genetic parents of. The procedure can be complex and should not be tried by someone without a child support attorney. However, assuming the proper proof is provided, such as DNA testing, Florida courts have the power to order that a prior birth certificate or support order is no longer effective because the father was not genetically the parent of the child.

However, how does this statute address child-support obligations? Candidly, the Florida legislature did a bad job of drafting this statute. The way it is written and recently interpreted, a court only has authority to cancel ongoing child support. It has no authority to cancel arrearages. How is this possible? Because of bad law writing. Perhaps this problem will be corrected down the road, but persons who suspect children are not theirs need to be quick with their rights and file a request for disestablishment of paternity in order to avoid this problem. LaBovick Law Group has a division dedicated to assisting fathers with disestablishing paternity and fighting fraud by the mother in claiming a child is theirs.

In a recent meeting between potential husband and wife I encountered a number of questions that prompted this short discussion on prenuptial agreements. Although these types of agreements can be uncomfortable and sometimes even embarrassing to draft, they are nonetheless a great idea in the right situation. These are extremely sensitive matters that need to be handled delicately, and by the right team of attorneys.

At first look, one may argue that the prenuptial agreement is simply a matter for a family law attorney. However, on a second glance it becomes clear this is a multi-practice endeavor. Let me explain and I think you will be persuaded.

First, we all can see why a Family Law attorney would be the initial choice to draft this agreement. The Florida Statutes addressing prenuptial agreements, alimony, asset distribution, and child support and custody are all issues that are traditionally dealt with by Family Lawyers.

Second, an Estate Planning attorney must be consulted while drafting a prenuptial agreement. A lawyer familiar with probate, elective share and spousal rights is crucial to drafting this document properly. Also, it will not hurt that the Estate Planner will have a good working knowledge of retirement plans and other investments. More likely than not, the couple’s financial advisor will also be a necessary component of the team.

Lastly, isn’t a prenuptial agreement essentially, just a contract between two individuals. Contract Law is therefore prevalent in determining whether the agreement is enforceable. Both parties must agree to all the terms and conditions and there must be the basic contract formalities of an offer, and acceptance and consideration. Also, contracts made under duress/coercion are generally unenforceable as well. This, in some cases, is very easy to prove in a prenup case.

In conclusion, it is best to attack the drafting of a prenuptial agreement utilizing the expertise of attorneys and even non-legal professionals of multiple disciplines. Employing all the experts will help ensure the client’s objectives are achieved as planned.

The same bill in the Florida legislature that seeks to do away with permanent alimony is also trying to mandate equal time-sharing/custody as the presumed norm instead of the historic exception to the rule. Given the current formula used to calculate child support, such provisions would significantly reduce child support in most cases. I think most parents would hail this bill as a good thing, but few would realize the ramifications of being a 50-50 parent when operating two households and two budgets. Economically speaking, unless both parents are fairly well-off, this proposal will definitely affect both parents, but if both parents are actually splitting time-sharing and expenses 50-50, then perhaps it is a good thing. Only time will tell if this proposal makes it through the Florida legislature. There are large grassroots campaigns established by both sides espousing the wisdom and evil of the proposal. As a parent and longtime family law lawyer, I have conflicting thoughts on this proposal. Only time will tell as to whether these proposals will pass and, if they do, whether they will work.

The Florida Legislature, comprised of quite a few lawyers and/or middle-aged men who pay alimony, is in the process of trying to change Florida's alimony laws. A recent bill working its way through the system would completely abolish permanent alimony, limit alimony to 50% of the duration of the marriage, and severely restrict Judges’ discretion on how to tailor such awards to each specific case. Permanent alimony is a rare thing in divorce court. However, the sponsors of this change seem to think that they are curing an evil that no one recognizes exists. The way this bill is written, it will probably be declared unconstitutional as it provides an avenue for someone who agreed to pay non-modifiable alimony to seek a modification. The bill also allows for splitting up cases so that the divorce order can be entered first and then subsequent hearings will occur to tidy things up.

Big mistake! Allowing litigants to conduct piecemeal hearings will only cause more expense and clog up an already overburdened system. Under the language proposed, parents could push through their actual divorce and worry about the children and child support later. Does this sound strange? It certainly does to me, as the legislature ought to be focusing on getting children issues resolved first and then let the parents battle it out.

I recently read that Playboy founder Hugh Hefner has finally married the woman of his dreams, 26-year-old Crystal Harris. At age 86, one would wonder how or why he would do this. The why part is up to other Internet blogs. The how is quite easy. However, I'm willing to bet you he had a stable of lawyers put together a foot thick prenuptial agreement. Rumor has it that this agreement even includes provisions for her leaving the mansion when he passes away. Such provisions are very common with marriages that involve parties that have acquired their own set of assets. Protecting those assets is paramount to most persons.

In fact, it can even be said that prenuptial agreements are a necessary part of our society. Properly drafted and correctly executed, prenuptial agreements are enforceable in every state. Florida has a specific set of laws found at Florida statute 61.079, et. seq., commonly known as Florida's Uniform Premarital Agreement Act. Trying to read this statute and draft your own prenuptial agreement is tantamount to buying a book on surgery and hoping you get it right at the end. Statutes change with time, forms found on the Internet usually don't. Having an experienced family law lawyer review your family history, assets and liabilities, and your desires at the point in time when you pass away are all equally important in planning such a document. Trying to use yesterday's forms to deal with today's problems is a mistake many people regret down the road. Too often times they realize they failed to address important issues that come back to bite them when the agreement needs to be enforced.

Many of us may have overlooked the ramifications of the recent June 28, 2012 amendments to the Florida Family Law Rules of Procedure in regards to what was previously called Income Deduction Orders (IDO). As a result of significant changes at the federal level, new forms are now required for what are now called Income Withholding Orders (IWO).

42 USC §666(b)(6)(A)(ii) requires Income Withholding Orders to be in a standard format prescribed by HUD. The old pre-June 2012 Florida form IDO did not comply with these federal regulations. The June 2012 amendments to the Florida Family Law Rules of Procedure Form 12.996(d) were designed to correct this problem. However, in May of 2011 the Office of Child-Support Enforcement of the US Department of Health and Human Services issued an Action Transmittal which mandated the use of an approved form by the states. Unfortunately, many states appear to have not amended their forms, Florida being one of them.

The June 2012 amendments are designed to correct that. What is disturbing about the Action Transmittal is that it allows employers to unilaterally reject orders that do not follow the approved form. These new federal mandated forms must be used in both IV-D and non-IV-D cases. Therefore, all of us are in the same boat. This is especially true for cases in which an old IDO is in place.

The new rules governing IWO’s puts the burden of getting the new forms prepared, signed and transmitted to the employer on the recipient. Federal employer identification numbers are required to be included. Several of the Florida Circuits have already created explanation brochures for litigants to attempt to follow this new rule. Palm Beach County Circuit Court Judge John Phillips’ webpage now references a link to the Florida 13th Judicial Circuit website which contains one of these explanation brochures.

All family law practitioners should take a moment to review these links to get up to speed on these new forms.

A recent federal court decision has illustrated the importance of specificity in drafting marital settlement agreements. On July 6, 2012 Federal Judge Middlebrooks issued his opinion in regards to a million-dollar life insurance policy dispute. The decedent/former husband had previously settled his South Florida divorce via a marital settlement agreement. The settlement agreement required him to have a million-dollar life insurance policy naming his ex-wife as the beneficiary. However, five months prior to signing the agreement, he had changed the beneficiary to his sister and adult son. Apparently, no proof of coverage was required or requested around the time of the Final Judgment. When he died, the ex-wife, sister and son all filed claims with the insurance carrier. The carrier wisely filed an interpleader action (deposited with court), the funds and indicated the Judge should figure out the mess.

Judge Middlebrooks did just that; indicating that since the marital settlement agreement did not specifically identify the life insurance policy in question, there was no way to change the prior beneficiary designation. The ex-husband could have just as easily gotten another policy to comply with his marital settlement agreement obligations. The ex-wife lost her claim, and the ex-husband’s sister and adult son walked away with $500,000 each. Is there a legal malpractice claim against the ex-wife's attorney for not being specific enough? Only time will tell.

Negotiating and drafting marital settlement agreements is an art, and requires great thought and specificity in regards to what was actually agreed to. Too often, we see examples such as this where the probable intention of the parties could not be determined. Trusting one side in a divorce can sometimes be a mistake. Not requiring proof of coverage shortly around the time of a settlement agreement or subsequent divorce can lead to situations like this.

LaBovick Law Group has a dedicated division focusing on family law issues. If you have a similar situation to this, or if you have any other family law related question, please don't hesitate to contact us for a free initial consultation.

At one point in time I read that there are hundreds of millions of dollars in outstanding support obligations floating out there. Collecting child support from deadbeats is sometimes difficult to do. I recently collected almost $200,000 in past arrearages from a deadbeat’s personal injury settlement. There is good case law supporting the entry of a lien on personal injury proceeds. However, it is not an automatic occurrence. The support recipient must file a motion and get it heard quickly in order to have a valid lien. When I file a motion, I indicate I have sent a copy to the deadbeat, the defendant who is being targeted in the personal injury claim, the defendant’s attorney and their insurance company. Most insurance companies won't risk issuing a check even if the motion is unheard at the time of a settlement. Get the motion heard quickly as having an order enforces your rights even more. Obviously, having a child support arrearage final judgment helps. In the case I mentioned above, I even did a writ of garnishment against the insurance company the day after the deadbeat tendered the settlement release! This all but ensured the entire proceeds were locked up until we got in front of the local Palm Beach County judge.

Is laches a real defense to child-support collection? I say no. There is a plethora of good case law indicating it is almost impossible to successfully argue and prove entitlement to laches. Although I have seen many lawyers try to raise laches in defense of a child support obligation, invariably they are unable to prove the elements of this defense sufficiently to entitle their client to walk away from the support obligation.

Florida's homestead protection prevents creditors from collecting debts against a person's home. However, there are several appellate court decisions that approve the collection of child support debt against a Homestead. In the same case I'm talking about above, I also have an order allowing me to foreclose the more than $400,000 in support arrearages against the deadbeat’s home.

Want some case law supporting these premises? Send me an e-mail to JFields@LaBovick.com, and I will send you back a packet of the orders I have obtained on all of these issues. I am always available as a consulting attorney or referring attorney to do this for you.

An interesting opinion has recently been issued by the Florida 4th DCA in regards to rescinding retirement account beneficiary designations done pursuant to a temporary relief order. The Topol opinion illustrates the problems that can occur when a party to a divorce proceeding dies before the final judgment of divorce is entered.

As a result of temporary non-appealable orders, the husband signed a beneficiary designation naming his then estranged wife as the beneficiary of one of his retirement accounts. He subsequently died before the case proceeded to final judgment. His estate/daughters sought to revoke the beneficiary designation, which would then have given them the retirement accounts. Because the beneficiary designation was signed in order to comply with a temporary interlocutory order, the beneficiary designation was revocable as the case had not proceeded to final judgment.

In Florida, when a divorce participant dies before a final judgment of divorce is entered, the case must be dismissed. That means all temporary orders are thrown out as well. Documents signed in order to comply with those temporary orders can be rescinded. Family law practitioners should be aware of this opinion as it provides substantial relief to heirs of deceased parties. LaBovick Law Group has a dedicated division focusing on family law matters. Attorney Joseph Robert Fields, Jr., Esq. has been practicing family law for more than 23 years and can assist you if you have any legal questions regarding your family law matters. He is available for free initial consultations.

As of July 1, 2012, employee benefit plans, life insurance and retirement plan spousal beneficiary designations will become void upon divorce. Although Florida's probate code has a provision that bequests to a spouse become void upon divorce or annulment, there was no similar provisions for employee benefit plans such as life insurance policies, IRA accounts, payable on death accounts, annuities, etc. With this new law coming into effect, although it is important to change your beneficiary designations at the time of divorce, not doing so will not result in those accounts automatically going to your former spouse.

Persons going through dissolution proceedings should contact the account plan administrator to determine the applicability of this new law and what new procedures must be employed, if any, when the divorce becomes final. Obviously, it's always a good idea to have your will and beneficiary designations reviewed periodically. At the point of the finalization of the divorce, there isn't a much better time. LaBovick Law Group Family Law Division is available for free consultations in these areas.

The process of separating or divorcing from a spouse is very stressful and emotional for most people. Many times, critical mistakes are made that can significantly affect a person's financial and emotional future. Here are a few suggestions on how to avoid causing yourself more harm.

Continue reading "Critical Mistakes to Avoid When Separating or Divorcing" »

A recent article in Reuters confirmed what many of us have been suspecting for the past several years. As women's incomes increase, so too does their obligation to support children and/or spouses under Florida's divorce code.

Alimony is now a two-way street and more women are paying men than ever before. The recent changes in Florida's child support statutes are now resulting in higher income mothers paying child support to fathers.

With the equitable distribution statute mandating a 50-50 split of assets/liabilities absent extenuating circumstances, many women are now getting the historic "bad news" that men have been receiving for years; not only are husbands receiving a 50% share of the assets/retirement accounts of their wives, they are also receiving child support and alimony. With the recent changes in Florida's child support statutes, it is not unusual for a father who has less than 50-50 time-sharing to receive child support.

For a free consultation on these new trends and changes to Florida's family law statutes, contact a florida family law attorney at the LaBovick Law Group to discuss your matter.

Florida has a statute dealing with parental relocation and what steps must be taken in order to seek approval when wanting to relocate with a child. Florida Statute 61.13001 defines relocation as at least 50 miles. But is it 50 road miles or 50 miles as the crow flies? The Florida 5th District Court of Appeal appears to have clarified that issue in a relocation dispute in which the parties’ settlement agreement uses the same 50 mile distance. But the kicker is that agreement does not indicate which method of measurement is to be used.

Tucker v. Liebknecht has now solved the problem! It is 50 miles as the crow flies. Given the analysis in this opinion, parents wishing to relocate within 50 miles (as the crow flies) from their residence, have an argument that they do not need to seek approval. In South Florida, such a distance can encompass multiple counties. Relocating such a distance definitely affects time-sharing abilities and affects quality time when traveling such distances.
For persons who have questions regarding their rights under Florida's relocation statute, you can schedule a free consultation with a florida family law attorney at LaBovick Law Group.

Permanent alimony appears to be on its way out if the male-dominated Florida legislature gets its way this session. A growing alimony reform movement has found its voice within Florida's House of Representatives to significantly alter how alimony claims are decided. The concept of permanent alimony may be altered to the point of such awards no longer being possible. Severe restrictions are being proposed on the ability of judges to exercise discretion in how such awards are provided. Most divorce in Florida cases present situations that are unique to the litigants. Judges need the ability to tailor each decision to the uniqueness of each case. There are even restrictions on the award of attorneys’ fees. Wealthy spouses who want to divorce can now try to severely restrict temporary attorneys’ fee awards to the other side. Historically, judges have the power to make things equal on a temporary basis so that the less fortunate spouse can hire an attorney with the same skills and abilities as the wealthy spouse’s lawyer.

Given most judges now have caseloads in excess of 1,500 cases, language requiring bifurcation (multiple trials) if a matter is not resolved within 180 days seems almost comical given the same legislature has failed to properly fund the court system. In Palm Beach County, Florida alone, there are 8 circuit court judge positions that cannot be filled because the legislature has refused to fund the positions. If this movement is successful, the same judges that are overloaded to the point of cases taking years to finish will now have to bifurcate a divorce, which will then require multiple hearings and cause even more delay.

The full language of this bill can be located on the Internet. I would urge you to contact your legislator and express your dissatisfaction with this movement. Persons with questions regarding their alimony in Florida needs or obligations can call LaBovick Law Group for a free consultation.

More than $100 billion in child support arrearages are owed to parents in the United States. The Federal government has recently launched Project Save Our Children in an attempt to collect this support. Federal agents, including FBI and Interpol are now cooperating in pursuing and tracking down deadbeats. Fleeing a county or state will no longer work as the federal government is now involved.

As a florida family law attorney, I have successfully pursued collection of more than $200,000 worth of child support arrearages against an heir to the Dodge fortune. He attempted to avoid paying by using a spendthrift clause in the trust that manages this multimillion dollar fortune. Fortunately, that did not work, and he was forced to pay significant penalties, including attorneys’ fees. I have also recently liened a deadbeat’s West Palm Beach personal injury case for the more than $400,000 in support arrearages he refused to pay.

Did you know it is also possible to force a person to sell their Florida homestead protected property, in order to pay support delinquencies? There is solid case law that supports this collection method. A few months ago I was successful in doing just that. I take collection of child support arrearages seriously and am always willing to discuss your case in a free consultation. I work with LaBovick Law Group to successfully assist parents in pursuing child support.

Recent changes to Florida's laws governing Durable Power of Attorney (DPA) documents might require the documents to be redone and re-signed. Any DPA signed prior to October 1, 2011, might now be stale and unenforceable or unusable. Banks and other institutions using or accepting DPA's are now allowed to reject such if certain requirements are not met. They can even delay the use of the DPA and insist that the user obtain a legal opinion that the DPA is still valid. These new laws allow delay in the enforcement or use of the DPA at the banks discretion.

How many times have we heard that having a DPA is absolutely necessary as part of the will, trust and estate planning a person needs?

With the recent changes in the law, any Florida DPAs signed prior to October 1, 2011 might be rejected as being noncompliant! One of the key changes is that "general" provisions are no longer valid. The powers given to the recipient must be specifically stated in the body of the DPA. Imagine trying to fix this problem after the fact when you're trying to use the DPA for an emergency!

The creation of wills, trusts, living wills, medical care and healthcare, surrogate appointments, and other similar paperwork is part of the florida family law practice of LaBovick Law Group. Persons wishing to have their documents reviewed can contact our offices for a free consultation.

In a case of first impression for the state of Florida, the 5th District Court of Appeal recently issued its opinion regarding parenting rights of same-sex couples. This opinion, subject to review by the Florida Supreme Court, establishes the rights of same-sex couples when involved in a dispute over a child they intended to raise as parents. Regardless of the characterization of the parents, when two persons in a committed relationship make arrangements to become the parents of a child, one of the persons does not have the right to walk away from the arrangement and deprive the other of those rights.

In this case, the non-genetic mother who gave birth to the child left the country and moved to Australia, attempting to prevent the egg-donating mother from having any parental rights. The 5th DCA admirably stood up for the rights of "parenthood" and did not focus on the same-sex issue. This opinion is in line with the recently blogged California case in which the concept of "presumed parent" came up. It is likely that the trial judge in the Florida case will follow the "presumed parent" concept and order joint custody and time-sharing of this child.

Those persons wishing to explore their rights under these cases should call Attorney Joseph R. Fields, Jr., Esq. for a free consultation. The sexual orientation of a parent has nothing to do with that person's abilities to raise a child. LaBovick Law Group supports the rights of all parents to assist and participate in the raising of their children.

A recent California Court of Appeal decision has established the concept of "presumed parent" for persons who have an established relationship with a partner and has developed a parental relationship with that partner’s children. Although this decision involves a same-sex couple with only one of the couples having legal and established parental rights, it appears to open the door to other relationships in which opposite sex partners are in the same situation. This California Court of Appeal decision is not binding in any fashion in Florida courts, but it could be helpful in arguing that a non-married partner of a person who has children has the right to try to establish the necessary elements to show that such person should be a "presumed parent" for purposes of continuing contact, visitation or time sharing with those children.

There have been numerous instances (usually arising from a vindictive ex) in which children have been stripped from their established, long-term relationships with persons who the children had historically deemed to be a "parent.” This should not be allowed to happen in any state. What happened to the rights of children to live stress free and have relationships with those persons they deem to be parents? This is a new arena in the Florida court system, one that has not yet been fully tested. However, for persons who are in this situation, perhaps now is the time to assert this issue and claim entitlement to continuing contact, visitation or time sharing with children that they have been involved in raising.

LaBovick Law Group considers the rights of same-sex parents and opposite sex parents to being equal. Parents are parents regardless of orientation. The issue should be in proving the relationship, not some technicality that harms a child's development and results in children being forcibly kept from persons they have historically had parental relationships with.

For more information, visit us at www.LaBovick.com or call us toll free at 1-888-777-3884.

Article Reference: Mother’s same-sex partner is presumed parent