Should You Ask for a Paternity Test? Depends . . .

If you are not sure about your child’s parentage, yes. There are legal reasons why a parent would have his or her child’s paternity determined as well as personal and medical reasons. Even if you are not looking to establish parental rights to a child, having a paternity test performed can help you determine his or her genetic health risks and give you peace of mind.

 A Biological Father is Not Always a Legal Father

 When a child is born to a married woman, her husband is automatically the child’s legal father regardless of whether he is the child’s biological father. If the mother is not married, the child’s biological father is not automatically put on the child’s birth certificate and granted parental rights. In order to be the child’s legal father, he must sign a voluntary acknowledgment of paternity at the time of the child’s birth or later in the child’s life.

 If the child’s mother and the alleged father do not agree that the man in question is the child’s biological father, one can file a paternity action to have the child’s paternity established by the court or the Florida Department of Revenue Child Support Services. Genetic testing is used to determine the child’s parentage.

 Determining a Child’s Parentage can be Part of Establishing Parental Rights to Him or Her

 In family law, the most common reason why an individual would seek a paternity test is to establish parental rights to a child. Having parental rights grants an individual the following:

●       The right to seek custody or parenting time with the child;      

●       The right to seek child support for the child;   
●       The right to cover the child with your health insurance and other benefits, like veteran benefits and Social Security; and                    
●       The child’s right inherit to your assets following your death if you do not have a will. 

Filing a Paternity Action in Florida

 A child’s mother, the child’s alleged father, a legal representative of the child, or the Florida Department of Revenue can file a paternity action to have a child’s parentage established.

When a party seeks to establish paternity through a court order, the court may order a genetic paternity test and require one or both of the parents to pay for it. In contrast, a genetic test ordered as part of an Administrative Order of Paternity through the Department of Revenue is free. In both scenarios, the final judgment establishes whether the alleged father is the child’s legal father. This does not automatically grant him child support or time with the child, but it does grant him the right to seek these things.

 Work with an Experienced Winter Park Family Lawyer

 Navigating issues of paternity, parental rights, and child custody can be tricky. If you find yourself entangled in these issues, an experienced Winter Park family lawyer can guide you to a productive solution. To get started with our firm, contact The Law Offices of Aubrey Harry Ducker, Jr., P.L.C. today to schedule your initial consultation in our office.

 http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0742/Sections/0742.10.html

http://floridarevenue.com/childsupport/Pages/paternity.aspx#fifth

 

Legal Realities of Complex Litigated Divorce Proceedings

When people want a divorce there are several questions they must consider, the How's, When's Where's, Who's, Why's and What's.

How to tell the spouse? How to tell the children? How to tell the rest of the family? How to go about filing a divorce?

When should I tell my Spouse, children, family, and friends? When should I move out or insist my spouse move out? When should I find a job? When should I consult an attorney?

Where should I live? Where should my children live? Where should we file the divorce?

Who should get an attorney? Who should represent me? Who should know what?

Why do I want a divorce? Why should I stay? Why should I care about all these questions??????

Finally, the What's!
What is the law applied to my case? What do I do if . . .? What will my spouse do? What will everyone think? What will happen to all our savings? What will happen to the china cabinet mom gave me and all its contents we have accumulated? What do I do with my wedding ring?
 
You want Answers? The Court wants answers. The Courts want answers to Alimony and Child Support. Who will pay and How Much? The Courts want to know who is going to pay attorney's fees. Courts will decide who gets the High Assets or valuable Personal Property. The Court can decide what to do with the Marital Home. There is an easier way!

That is a long list of questions with very few easy answers! Some of the questions I would ask are:
How much time do you want to devote to court proceedings?
When do you want all this to be completed?
Where do you want to end up after all is finalized by the court?
Who will win/lose or decide?
Why does anyone have to let the Judge Decide?
What do you want to happen with your children? Of course my questions are directly related to a Collaborative Divorce, in which the Husband and Wife make all the decisions about the Property, Assets, Timing, and living situations, and the Mother and Father make all the decisions about the children. Some people think this is a Radical idea. Others believe that two people who could not get along well enough to remain married Cannot Possibly Get Along well enough to decide what is best for their family. I Disagree. From years of practice, we in the Collaborative Practice community have witnessed the most intractable situations turn out with everyone in agreement to a reasonable outcome.

Attorneys who are not committed to the collaborative practice and merely offer it alongside their mainly Litigation Practice, do no favors to their clients. Litigated cases are almost always significantly more expensive than Collaborative Cases. Further, Collaborative cases allow you to decide the timeframes for completion. You are not forced to work at the court's convenience, rather, your time schedule is of paramount importance.

Finally, you get to make the decisions affecting your family. By negotiated agreement you and your spouse will decide all issues. That is a radical idea. Call me at 407-645-3297 or visit my website at www.aubreylaw.com or visit the Collaborative Family Law of Central Florida website at www.cfl-cfl..org

Investigate the questions. Get answers to your questions. You have the Power! 

Senate Bill 718 and House Bill 231

TURNING BACK THE CLOCK on 30 years of progress in Family Law
An Update and Plea to Help Stop this Travesty

Recently the Florida House passed HB 231 mandating changes to divorce law that will make marriage much more palatable and divorce much easier. You see, if this becomes law, no man will fear alimony or child support. Changes proposed will END permanent alimony (never mind that permanent alimony is almost universally not permanent today). Changes will also guarantee child support will be minimal and discretionary. If the primary breadwinner doesn't want to pay support, they are guaranteed 50/50 timeshare, and can easily ask for more to "allow the other spouse maximum time to work" thereby lowering child support to next to nothing. Forget deadbeats, no order will issue requiring support while fighting it out.

OK, those are worst case scenarios, but anything is possible when this legislature is in session!

Here are some of the proposed changes:

- application of these new rules retroactively to alimony awards entered (within the past 15 years by agreement) regardless of whether the support was based upon the agreement of the parties or court ordered after trial;

- litigation of alimony changes carries a risk of attorneys fees, just for contesting the changes in court;

- The new law would REQUIRE the proof of increased income AND for TWO YEARS of increased income to be deemed permanent. Quite a hurdle for the person receiving alimony. There is no such requirement should the obligor seek to obtain downward modification. Oh, my pay went down, so I don't have to prove it or show the decreased income lasted 2 years.

- Possibly the Worst idea: The new law includes a presumption for 50/50 timesharing except in very limited circumstances (prove a danger to the child's health, safety and welfare)(this applies in ALL cases not just divorcing parents)

Another bad idea: if the obligor is unemployed at the time of the dissolution the spouse has to wait a full two years after they become employed before asking for spousal support to be modified. So, lose your job just prior to divorce and 2 years without alimony will certainly punish your former spouse for wanting a divorce!

If this passes out of the Senate tomorrow afternoon, and it looks probable, it will be on the House floor next week and then off to the Governor shortly thereafter. The Family Law Section is doing what it can to defeat these bills, having committed to a grassroots and media campaign to get the word out, but those efforts are going to run short without your help. I am therefore asking that if you have not done so in anticipation of this bill being voted upon by the full Senate tomorrow that you please contact your Senators and, after tomorrow, your Representatives (or all Senators and all Representatives) http://www.flsenate.gov/Senators/Find and http://www.myfloridahouse.gov/Sections/Representatives/representatives.aspx and urge them to oppose this legislation. Then, remember how they voted when they run for office next time.

 

Call me at 407-645-3297 or visit my website at www.aubreylaw.com

Aubrey

Great Article on Collaborative Divorce

Occasionally, I like to post links to articles worth reading. This is one: http://www.huffingtonpost.com/lynn-j-maier-esq/saving-your-sanity-with-c_b_1077335.html

When divorce is the choice, how you go about it matters. Collaborative Divorce is a method of practice that allows the parties, with the help of their attorneys and other professionals, to decide all issues in ways that benefit their family rather than fighting until a court decides in a manner consistent with the thousands of cases also fighting to a decision.

Don't you know what is best for your family? Collaborative Divorce allows you to play a major part in the decision making process. More so that even mediation.

When you need help, Call me! 407-645-3297 or visit my website at www.aubreylaw.com

Change to Social Security Hours

In case you missed it, the Social Security Administration announced a change effective August 15 of this year. The announcement will no doubt affect services provided by attorneys as well as the Social Security Office. If your Elder Law Attorney or Family Law Attorney must deal with Social Security Issues as well, this is Not a welcome change. The announcement follows:

Effective August 15, 2011, Social Security field offices nationwide will close to the public 30 minutes early each day. For example, a field office that is usually open to the public Monday through Friday from 9 a.m. to 4 p.m. will close daily at 3:30 p.m.

“While agency employees will continue to work their regular hours, this shorter public window will allow us to complete face-to-face service with the visiting public without incurring the cost of overtime for our employees,” said Michael J. Astrue, Commissioner of Social Security. “Congress provided our agency with nearly $1 billion less than the President requested for our budget this fiscal year, which makes it impossible for us to provide the amount of overtime needed to handle service to the public as we have in the past.”

Most Social Security services do not require a visit to an office. For example, anyone wishing to apply for benefits, sign up for direct deposit, replace a Medicare card, obtain a proof of income letter or inform us of a change of address or telephone number may do so at http://www.socialsecurity.gov/ or by dialing our toll-free number: 1-800-772-1213 (TTY 1-800-325-0778).

In Elder Law, Family Law and Divorce, many people have to discuss how to allocate Social Security Benefits paid to children or dependents. Sometimes these are the only assets or income for the family. If you need help, Call me at 407-645-3297 or visit my website at www.aubreylaw.com

I look forward to hearing from you. Aubrey

Guardianship, Conservatorship and Rights

The Orange County Bar Association, Solo and Small Firm Committee met in Orlando today to discuss Basic Guardianships. I always enjoy a refresher course, so I attended. Wow! OK, so I knew most of this, but its nice to meet other attorneys for lunch and have an excuse to add a refresher to my Blog.

In Florida, any adult can file a Petition to Determine Incapacity against any other adult. This is coupled with a Petition to Appoint Guardian so the Alleged Incapacitated Person, or Proposed Ward, can be protected. But Protected from what?

As we age, our brains may not function correctly in all instances. Sometimes, Alzheimers, Dememtia, stroke or other disease may render one incapable of understanding the dangers of everyday living. When a person is incapacitated so they are a danger to themselves, the court can step in and remove some of their rights in order to protect them from self-inflicted harm. The harm may be physical in nature, or financial.

Many people try to take advantage of these normal aging processes and financially exploit seniors. Sometimes even family is guilty of exploitation. In fact, Many times the person being exploited is a close relation to the abuser. Financial exploitation IS ABUSE!

Once the Petition is filed, the court appoints a 3-person committee to evaluated the "Proposed Ward," or "Allegedly Incapacitate Person" to determine whether the AIP is competent to make life decisions. The 3 person "Examining Committee" includes two doctors and one layperson with experience in Elder Affairs. Llife decisions that may be impaired by the court include such major decisions as voting, marriage, living arrangements, donations to religious organizations, medications, surgeries. No less important are decisions involving who may visit the ward or where the ward may travel with visitors.

The Court also appoints an Attorney Ad Litem to represent the AIP or Proposed Ward. Sometimes the AIP has a longstanding relationship with an attorney who will represent him in the proceedings. Either way, the Proposed Ward is protected so that rights are only removed to the most limited extent necessary to protect the Ward. Often the Proposed Ward will have completed a Durable Power of Attorney that obviates the need of a Guardianship proceeding; a Preneed Guardianship is also available to help lower the cost of eventual Guardianship Proceedings.

If you have a Power of Attorney, it must be Durable in order to continue operation once a person is found to be incapacitated or what we think of as incompetent. If you thought everything was honky dorey, then watch out! Powers of Attorney come in many shapes and sizes and can even be purchased at Home Depot, Lowes, OfficeMax, Target and Walmart. They are NOT all the same. They are Legal Documents that include required formalities in the signing. I have had more than one client who brought a "Durable Power of Attorney" that was improper and ineffective. People have signed in the wrong space, forgotten to notarize signatures, "checked" the wrong box, and even paid an attorney for a "Durable" power of attorney which expired at incapacity. Please seek help in evaluating your needs.

If you have read this far, you may wonder what all these protections cost. A Durable Power of Attorney is certainly the least expensive.
Guardianships may cost between $1,500 minimum and several tens of thousands when competing interests are active in contesting the Guardianship. The filing fees alone are more than $600. Payment for the Examining Committee (between $850 and $1,500) and Attorney Ad Litem (between $500 and $5,000) make the process appear expensive to some. When you consider that a person is potentially losing their rights as a citizen, you may better understand the expense. Obviously your selection of an attorney is one critical factor in controlling these costs and making the necessary legal filings as efficient as possible.

When you have questions about the competence of your parents or elderly neighbors, Call me at 407-645-3297 or visit my website at www.aubreylaw.com

I look forward to hearing from you.

I didn't mean to Scare you!

"Congratulations, you are officially Divorced!" I said to my client.

"Thank you, you are Awesome," she said. (Really, that is what she said!)

"I am so glad we were able to get this done so quickly," I replied.

"Well after you scared me that first day, I did not have any unrealistic expectations and we could just get it done."

I really did not mean to Scare my client. I have always prided myself on being direct and honest with clients so they know what to expect from the Divorce Process and from the court system. I really don't want to scare anyone. Sometimes, clients come in my door having talked to not only other lawyers, but to friends and family who "know what to expect" and know "all the tricks in the book." Unfortunately, what is heard from your friend about their divorce may be colored and biased by their experience. They may feel the need to project unusual success or even put upon martyrdom. All the stories may in fact NOT be completely true.

Common myths include:

"My divorce only cost $250."

"I didn't have to pay a penny in alimony/child support."

"My wife/husband got the kids, the house, and all my money."

"My husband/wife tried to get the kids just to force me to settle for less."

"I never get to see my kid's, their father/mother keeps them from me."

"My divorce cost us more than $100,000."

"Our attorneys were the only ones happy after our Final Judgment."

When your friends tell you these things, you really have to ask more questions and compare their life experience and marriage to your own before setting up your expectations.

Divorce filings cost $408.00 in all Florida courts. What your attorney charges is determined by many factors including time, experience, complexity, and most importantly, who is on the other side of the litigation.

Whether you have to pay Alimony or Child Support is entirely driven by the family situation inlcuding many different factors: length of marriage; number of children; earning ability of each party; lifestyle, and most importantly, what you are willing to accept or pay, just to name a few.

Negotiation over child custody, what we now refer to as "Timesharing," is remarkably direct. Who is best able to care for and keep the children? Who has done so consistently in the past? When one parent wants to "claim the children" as a negotiation ploy, it is imperative that the court be fully informed. A Guardian Ad Litem or GAL is essential to fully inform the court and make sure the children are represented both at the bargaining table of Mediation or in court. Parents who would use the children as pawns in a game, are not good parents, and GAL's are adept as seeing through people's behaviors to their motivations and goals.

If your divorce costs too much money, ask yourself who is causing the excess expenses? Even the most complex divorce can be handled in a reasonable amount of time and for a reasonable fee by seeking out attorneys who do not set up unreasonable expectations which must then be met or attempted. Collaborative Divorce is a great idea for those with very complex situations as it brings all decision makers to the table routinely, rather than filing, and waiting, and responding and waiting, and hearing, and waiting, etc.

If you have questions regarding Divorce, Child Support, Collaborative Divorce, Alimony, Spousal Support, Custody, Timesharing or any other Family Law matter, please visit my website at www.aubreylaw.com or call me at 407-645-5264. I will be happy to review your situation with you and most of all, I will try not to "scare" you! Aubrey

Football Season Starts Tonight

The Winter Park Wildcats take on East Ridge at Showalter Field at 7 p.m. The game was moved up due to Hurricane Irene. Families working together for years get to see the first efforts of their children on the field as they Cheer for the Team or Play on the Field.

Unfortunately, there will be some children whose parents cannot put aside their differences and attend the event without causing great stress to everyone else involved. You know the type, all they do is talk about how bad the other parent is. Why do people think that the world wants to know the "hell" they endured being married? Please do your child a favor. Do not disparage your former spouse in any way that the child can know. If you take the high road, perhaps the other party will abandon the low road as well.

I personally know parents who will attend tonight's game and sit in the stands very close to their former spouse without any hint of conflict. I know parents who will work together in the concession stand or on the field to support the team even though they could not stay together in their marriage. I applaud these efforts.

Many other people will be watching the game while thinking of their own parents, relatives or friends who are diabled by age, dementia, alzheimers, or other problems. These parents may not know there is help available. Please reach out and ask questions. There are resources available and people who know how to access those resources for your benefit.

If I can help, please call me at 407-645-3297 or visit my website at www.aubreylaw.com

I look forward to hearing from you.

When do you Call a Lawyer?

The time is NOW! If you are wondering whether or not to call a lawyer, an attorney or as I prefer, Counselor at Law, then you should call. We are here to answer your questions.

Many people will ask their friends, family, and even strangers on the street what they think of a problem.

Lawyers are trained to answer questions of a legal nature. Attorneys are adept at asking the followup questions that provide real meaning to the questions. Counselors at Law can help you interpret and apply the law to your situation in a way you may have not considered and can discuss the impact decisions may have on other areas of your life. In Central Florida, one attorney advertise on TV that "a free 5 minute call will answer all your questions." If that is true, Call!

In my practice most questions are more involved than a short phone call. They usually involve multiple family members and the impact on each can be different. In Divorce, the children must be a consideration. In Elder Law, the Parents are ususally the major consideration. Guardianships can affect many different life decisions.

If you have questions of a legal nature, Call an attorney.

Visit my website at www.aubreylaw.com or call me at 407-645-3297. Make an appointment to come in and review your situation and the many different ways and possible outcomes that can relieve the stress you are feeling. Aubrey

Collaborative Law in Orlando and Winter Park

July 15 and 16, I attended the Interdisciplinary Collaborative Law Training at the University of Florida Levin College of Law. While I relish any opportunity to return to law school, this trip was particularly helpful. Co-Sponsored by the Institute for Dispute Resolution and the Center on Children and Families, the Gainesville Collaborative Divorce team spent two full days reviewing the Who, what, when and where, as well as the hows and whys of Collaborative Divorce.

For almost 12 years as an attorney, I have always tried to work in a cooperative way with other lawyers. I find little is solved by acrimonious debate as harsh litigation tends to prolong litigation and impoverish the parties more than solve the issue at hand. While I have always tried to be cooperative, I have never been "officially" trained as a "Collaborative Attorney."

Not anymore. There are new tools in the shed. There are many more choices when considering divorce. Ask yourself, what is best for my family?

In law school at the University of Florida, Dean Richard Matasar stressed the collaborative process as a way to make the practice of law more fulfilling to attorneys. Many of us got into this practice because we want to help people; unfortunately, for many people, divorce is the most disagreeable practice in law. Dean Matasar taught many of his students that you don't have to be disagreeable when your opinion differs from the other side of the courtroom. Following his example, I have always tried to work with opposing counsel in a cooperative manner. Since completing the training program this summer, I am now officially trained in Collaborative Law practice.

I look forward to offering this new service in Collaborative Law in Divorce cases, as well as Guardianship cases. The Collaborative Process allows the parties to work out their issues with a trained professional, usually a Mental Health Counselor, a financial professional trained in divorce accounting and valuation, a mediator if necessary and two collaboratively trained attorneys, rather than litigating and leaving ultimate decisions to the Judge.

While the above listing of professionals involved may sound expensive at first blush, most participants in a collaborative divorce will agree that the process itself is more healing and conducive to protecting the parent to parent relationships necessary when children are involved. Also, in a litigated divorce, most professionals (Valuation, Accounting and Mental Health) will be duplicated as each side employs their own "hired guns" to best present their case. The Experts hired by each side will inevitably argue and reinforce their own opinions rather than working with all parties to facilitate a mutually beneficial result.

Collaborative Law may not be for everyone, but for many families with children, the process allows the parents to work out the best interests for their children rather than leaving it all up to the judge.

If you have questions, call me at 407-645-3297, or send an email to: aubrey@aubreylaw.com

I look forward to hearing from you.

The Church of Facebook - Review

Look for my review of The Church of Facebook in the Spring 2011 issue of Christian Ethics Today. You can also subscribe to Christian Ethics Today by going to this website: http://www.christianethicstoday.com/

Recently a client came to my office after having litigated for more than a year trying to secure custody of his children. While he was represented by a well-known attorney in the Orlando area, he was disappointed that his case had not been resolved in such a long time. I had to tell him two things:
1. Selection of an attorney is the most important part of any family law case. There are many attorneys with various personalities and work ethics. Certainly price is one consideration, but it should not be the only consideration.
2. Sometimes status quo is the best you can do; pushing for a final resolution may be detrimental to your case. Unfortunately, giving the other side time to screw up may be the best you can do.

When you go to select an attorney, interview several. If necessary, pay a consultation fee so that you get a clear picture of the attorney's philosophy of practice. Then you can know you are hiring an attorney who will look out for your best interests and take on your priorities.

What to Take to a Meeting with an Attorney

On the phone many first-time callers will inquire as to what items to bring. Obviously the answer depends largely on the needs of the client.

If I am meeting as an Elder Law Attorney, I expect to see a complete picture of the financial and medical needs of the client. That means: bring copies of the most recent bank statements, investment account statements, and Social Security Statements; bring some knowledge of the persons physical abilities and limitations, and most of all, bring honesty.

The Elder Law Attorney must have a complete and ACCURATE picture of the clients needs as well as resources. Sometimes a client may not want to disclose all assets, which can be a real hindrance to qualifying for Medicaid. If the true picture is known the attorney's advice will be remarkably different from that given on limited facts.

When I meet with clients in divorce situations as a Family Law Attorney, I expect to see a complete picture of the Marital Difficulties, Financial Assets, Financial Needs and family needs of the client. This means you should bring: at least 3 months of Bank Statements and Credit Card statements, for both parties if possible; bring a list of all Real Property owned by the parties, whether jointly owned or not (sometimes people are confused as to what constitutes Marital Property under Florida Law); a list of IMPORTANT Personal possessions, and as before, HONESTY.

A Family Law attorney cannot fix all the problems and if you bring a jaded 1/2 picture of the issues, your attorney may miss important points of advice. If you believe your spouse is unreasonable in negotiations, the Specialist in Family law may make different recommendations. So many times people think a previously unreasonable spouse will want to "work things out for the children" once the divorce is filed. Most times the stress of a litigation brings out the worst character traits in people, not the most altruistic.

Finally, bring a method of payment. If an attorney offers a Free Consultation take it, but most good attorneys do not give their advice away during Free Consulations. Better to pay a fee and get real advice and counsel than to take the Free Consultation only to spend an hour telling the attorney of the problem and have no idea of the attorney's opinion at the end. My office takes Cash, Checks and most major Credit Cards. A Consultation normally lasts TWO hours but I typically charge for one hour of time. Flat Fee Services are available as well.

Call me for an appointment, 407-645-3297 or visit my website at www.aubreylaw.com