31. Legal Father vs. Biological Father

In today’s society, it is common for couples to have children prior to marriage.  As a result, it is extremely important for fathers to know their rights.  Although it may seem as though a biological father and a legal father are one in the same, that is not always the case.  Believe it or not there is a distinction between a biological father and a legal father, and the distinction can have financial consequences.

A biological father is identified by the man that indeed “fathered” the child, whereas, a legal father is the man that has the legal rights and resulting responsibilities to the child. A child’s legal father can be established by biology, marriage, adoption, or court ruling.

Florida law establishes a legal father to be a man that is either the natural (biological) father, adoptive father, or the man who has contracted to care and support the child.  Contracting to care for a child is becoming more and more prevalent in our society; therefore, this is a topic that all men and even mothers should be aware of.  For example, if a man allows himself to be listed on the birth certificate and holds the child out as his own for a significant period of time, the man may be deemed the legal father and be responsible for child support obligations.  Of course, this legal father would be entitled to visitation with the child.

If you have such an above situation, you should hire an experienced family law attorney.  Mackey Law Group’s highly skilled attorneys can assist in determining exactly what your rights are.  Call us: (941) 746-6225.

By: Alison Breiter, Esq.

30. PATERNITY: BIRTH CERTIFICATE ENOUGH?

Mackey Law Group has handled hundreds of paternity cases in Florida.  A common misconception in paternity cases is that if the Father’s name appears on the birth certificate of a minor child, that automatically means he is legally the Father and is entitled and/or accountable for all the rights, responsibilities, and privileges relating to that minor child without further action.  However, that is not the case when a child is born out of wedlock.

In order for either the Father or the Mother to establish timesharing, child support, etc. with the court for a child born out of wedlock, there must first be a determination and actual order by the Court establishing paternity for the Father.  This is often established via an agreement of the parties, which is then approved by the Court; the birth certificate does play a part by at least creating a presumption that the Father on the birth certificate is the actual legal Father. However, sometimes a DNA test is required if the parties do not agree on who the Father is.  This leads to yet another common misconception that any DNA test will suffice.

In a paternity lawsuit, establishing paternity is just the beginning, but it can be the most important component.  The timing and need to establish paternity can be critical in the beginning of a case, especially if one parent is threatening to move away.  Hiring an experienced lawyer in paternity, timesharing, and child support matters can make all the difference in obtaining a great result.

Mackey Law Group’s skilled attorneys are in Manatee and Sarasota courts on paternity cases winning day-in and day-out. Call us: (941)-746-6225.

By: B. Kyle Stalnaker, Esq.

 

25. Divorce as a Non-U.S. Citizen

Many non-U.S. citizens are hesitant to leave a spouse out of fear of the U.S. court system or concern for their residency status. You may be surprised to learn you don’t need to be a U.S. citizen to get divorced in the United States. Non-U.S. citizens are afforded the same resources and rights in divorce proceedings as U.S. citizens, including the ability to file for divorce and have an attorney represent them. However, a common question is how a divorce will affect their legal residency status.

Unless the marriage was fraudulent, or solely for the purposes of obtaining citizenship, the divorce will only have a small effect on the citizenship process. In most cases, the citizenship process may be delayed and additional proof may be required to show the marriage was legitimate. The proof required varies but factors include the length of the marriage and if any children were born of the marriage.

If you are considering divorce and are not sure how it will affect your residency status, contact an attorney at Mackey Law Group P.A. to help guide you through this process.

By: Jorge Martinez, Esq.

19. Business Ownership and Divorce

Typically, in Florida divorce proceedings, the assets and liabilities owned by the Husband and Wife are subject to being either split via an agreement or by the Judge. However, what happens in a divorce when one of the parties owns a business to the exclusion of the other spouse, has an interest in a business, or the parties own a business together—does the business count as an asset? What about the debts of the business, who is responsible? What if the other spouse starts selling assets from the business quickly right as the divorce gets started? Can one spouse lock the other out of the business if they work together?

These are just a few of the questions that inevitably must be dealt with in a divorce proceeding where business ownership and interests are at issue. Some examples of the important steps that an experienced divorce lawyer should take to answer these questions involve: hiring an expert to value the business’s assets and debts, obtaining a court order to keep the business operating and earning money, and/or actually joining the business as a party to the divorce action, etc.

Mackey Law Group’s attorneys are not just blue-collar divorce attorneys—we are experienced business law litigators, with the skill and knowledge to navigate these complex waters and ensure you get what you deserve.

 

 

By: B. Kyle Stalnaker, Esq.

18. FLORIDA ALIMONY MODIFICATION VICTORY!

On May 5, 2017, Kyle Stalnaker of Mackey Law Group took on oral argument in front of the Florida Second District Court of Appeal concerning a firefighter’s appeal of the denial of his alimony modification request case. The subject of the appeal was requested downward alimony modification due to retirement.

In Florida a party requesting an alimony modification must show: (i) there has been a substantial change in circumstances; (ii) the change was not contemplated at the time of the final judgment of dissolution; and (iii) the change is sufficient, material, permanent, and involuntary.  Of particular importance to the appeal, was element (ii): whether the change (lower income due to retirement) being contemplated/not contemplated at the time of the final judgment of dissolution of marriage.

In the lower Court’s ruling, the retired firefighter had not been allowed to reduce his alimony payment. The change to the law obtained by Mackey Law Group, per a written opinion by the Florida Second District Court of Appeal, is that now that “the change in circumstances” cannot be contemplated at the time the marital settlement agreement is fully executed, as opposed to the “change” being contemplated at the time the final judgment is entered.

This opinion by our Florida Appellate Court is important because based on our crowded Court dockets, more and more cases have a lag period between the date of the settlement agreement and the date of the final judgment.  It was during this lag period that the firefighter’s change occurred, leading to his retirement (he failed the physical firefighter test due to a heart condition). The lower Court had ruled that because the change occurred before the Judgment was entered, the firefighter could not reduce his alimony payment.

The Second District stated in it’s opinion: “In cases involving an MSA (Marital Settlement Agreement), the effective date of the agreement establishes the date to which a trial Court should look in determining whether a substantial change in circumstances was contemplated by the parties.  This is especially so in cases like this one where there is an extended delay between execution of the MSA and the entry of the final judgment.  Were we to adopt (the other side’s) position, we would be effectively, and needlessly, foisting language upon the MSA that the contracting parties did not include, and which would change the terms of the parties’ agreement. We are loathe to do so.

The hiring of an experienced family law attorney is imperative. Only an experienced lawyer knows how to set up the necessary language and terms in a marital settlement agreement.  The terms of a divorce settlement agreement can make all the difference for years to come in a divorce.

-B. Kyle Stalnaker

14. Cash, Gift, or Secret Loan?

Buying a home is for many, one of the most expensive purchases a family will ever make. Thankfully, many have friends and family who are willing to help finance this first purchase, usually for the down payment on the home. These types of funds are called “gift funds” and are not intended to be repaid. Gift funds allow young families the opportunity to purchase a home with the help of their family or in-laws.

Unfortunately, relationships can sour. What happens if those you once considered your friends and family demand their money back months or years down the line? What do you do now that your former friends or in-laws are suing you, claiming the money they gave was not a gift, but a loan meant to be paid back? You hire an attorney; don’t allow yourself to be threatened and bullied into paying back money you don’t owe.

Situations like this are all too familiar to us here at Mackey Law Group. They usually come up in divorce proceedings when one spouse’s in-laws want their “money back” from the son/daughter in-law. If you are being threatened by those you once trusted, hire a lawyer who will protect you and defend your rights.

By: Jorge Martinez, Esq

13. I’m the spouse who doesn’t work; how can I pay to get divorced?

Many clients (usually women who are raising/have raised the kids) do not have their own money and their spouse has excluded them from access to any marital funds/assets. So, the non-breadwinner spouse finds herself in a bad spot: How does she have the funds to get the divorce which she must have? How does she make sure that she has an equal chance?

Unless the non-breadwinner spouse has few thousand dollars, she will unfortunately not be able to start the divorce proceeding. But, if she has a credit card, some cash squirreled away, or she can borrow from a family member,   she can make the initial payment and get the divorce proceeding started. A good divorce lawyer will then not only get the case moving forward; but he/she will immediately make motions for temporary attorney’s fees and temporary spousal support. A good divorce lawyer will also get your motions immediately set for hearing so that you have access to the marital funds/assets and can afford represent herself. A side note: if the breadwinner spouse is transferring-out/hiding money and other marital assets, there are laws prohibiting such and good divorce lawyer can force the reversal of those transactions. In other words, there are many ways to stop the spouse with all the money from financially strangling the non-breadwinner spouse.

You do not have to feel trapped in a marriage. The court has the power to award temporary funds to the non-breadwinner spouse so that she is able to both support herself and pay for a good lawyer; she must be litigating on a level playing field.  The key is to hire a lawyer who not only knows the law; but, knows how to navigate your case quickly through the court’s docket and procure results. And don’t forget to ask: Do you actually try cases?

At Mackey Law Group, we have accomplished all of the above many times and we are experienced trial lawyers. Most importantly, once we get our clients on a level playing field with the opponent, we excel.  So, if you find yourself in such a “spot”, callus. We know how to level the playing field and how to handle bullies.

By: Drew Chesanek, Esq.

 

10. SEX, LIES, AND FALSE ACCUSATIONS

In June of 2015, Jim (all names have been changed) was sitting in his office at a well-known business when Sam, a neighbor of Jim’s, walked through the lobby, stuck his head into Jim’s office, and asked him to come outside of the building to speak with him. When Jim walked outside the building front doors, Sam commenced to punch Jim, and continued to do so after Jim hit the ground. An employee ran outside and literally saved Jim. The injuries to Jim were significant. He was taken to the hospital by ambulance and had a broken nose and fractured orbital socket.

Things then got worse for Jim. Over the next two months, Sam placed professionally-made signs in the Bradenton neighborhood where they both lived (and had minor children), stating that there was a child molester living in their neighborhood and asking people to call a number on the sign that was Sam’s number! Sam also kept spray-painting orange arrows on the pavement in front of Jim’s house. When the HOA president attempted to remove one of the signs at the entrance of the neighborhood, he was confronted later that evening at his house by Sam, who had placed a game-camera in the bushes by the entrance-way sign!

What caused all of the above?

Sam’s minor daughter had apparently been having disciplinary problems and had, the morning of the assault, told Sam’s wife what Jim had improperly touched her years earlier. Absent asking any questions, Sam had taken everything his teenage daughter said at face value. Sam left the house, drove to Jim’s place of employment, and assaulted Jim. Sam then proceeded to place the above-referenced signs and painted arrows. In turn, Jim and his family were mortified. They actually had to move out of the neighborhood to a neighboring town. How could a man possibly defend such unsubstantiated allegations? The worst thing a married man with children could possibly be called is a child-molester!

What happened next?

That’s when Jim came to Mackey Law Group. We gathered all the facts and commenced a civil action against Sam. Mackey Law Group also proceeded to retain one of the best experts in the country as to defending the totally false allegations.

Sam hired a Sarasota lawyer, who was affiliated with a Miami firm. Sam’s lawyer was high-brow and “specialized in child abuse cases”. Sam even counterclaimed on behalf of his daughter against Jim. Sam and his lawyer tried anything they could to legally intimidate Jim and his family. They actually demanded that Jim pay Sam’s family money! Sam’s lawyer was adamant and condescending the whole way through the lawsuit, repeatedly stating things to Mackey Law Group’s lawyers such as: “You have a pedophile on your hands what are y’all going to do?”

But Mackey Law Group’s attorneys believed in our client, navigated the case around the many obstacles put up by Sam’s legal team, and we kept pushing to get to trial on the false accusations and outrageous conduct/battery. Although it was expensive for Jim, he refused to bow-down to such bully-tactics. By the time trial was nearing, Mackey Law Group’s lawyers had even documented the accusing girl’s (Sam’s daughter) story as changing no less than 7 times! Sam’s legal intimidation tactics had not worked.

How was the case resolved?

Finally, when trial was upon the parties, Sam’s lawyer asked for a continuance of the trial, which the Judge refused to do. Then Sam’s lawyer asked for mediation and the Judge granted Sam’s lawyer’s request. At mediation, Mackey Law Group opened the proceeding by literally shocking the other side with its preparation. Our lawyers were on task and put on Jim’s complete case in summary fashion; inclusive of: photographs, police reports, hospital records, and our expert’s analysis that the event referenced by the accusing minor girl never happened. Conversely, Sam and his lawyers appeared to have nothing to fight back with. They actually appeared to be stunned.

As a result, Mackey Law Group got Sam to agree to: (i) pay Jim $175,000 cash; (ii) never disparage Jim again; and (iii) the entry of a no-contact order as to Jim and his entire family for the rest of Sam’s life; he cannot come within 500 feet of Jim’s family. In addition, Mackey Law Group forced Sam to agree that the settlement would not be confidential; that way, Jim could go back to his former neighbors and show them exactly what the result was as to the false accusations and battery by Sam.

The moral of this?

Never back down to bullies. Stand up for yourself when you are in the right. And, when necessary, hire the very best lawyers you know. Justice will prevail.

By: Peter J. Mackey, Esq.

9. Who will get Custody of my Kids?

When facing divorce, many parents assume the mother will automatically be awarded custody of the children with the father getting limited visitation. Florida courts have done away with this presumption and will now divide time between parents in the child’s best interest. The courts no longer have a presumption as to which parent will automatically get the most time, but look at the facts of each case individually.

Without an attorney, it can be easy for a mother to incorrectly assume she will automatically get sole custody simply for being the mother. On the other side, a father may think it is useless to ask for more time since it is already a done deal that the mother will win custody of their children, not realizing that he could have fought for more.

Child time sharing is but one of the issues a divorce brings, and hiring an attorney to represent you through this process is the best thing you can do for you and your children. Mackey Law Group has represented many parents in divorce proceedings and we can help you through yours.

Jorge Martinez, Esq.

 

 

6. Abandonment Myth: Moving Out of the Marital Home and Divorce

There is a common misconception that if one spouse moves out of the marital home prior to or during a divorce proceeding that they have “abandoned” the home and are no longer entitled to any of its value in the divorce.  In Florida family law courts this simply is not the case.

Regardless of whether one spouse leaves the home voluntarily or involuntarily, they are still Abandonmententitled to a portion of the equity (or debt) of that residence as part of the divorce.  Credits may be given to the remaining spouse or either spouse who continues to pay the mortgage when dividing the equity, but this still does not lend itself to any issue as to whether abandonment has occurred or whether one party is relinquishing a right to an interest in the property by moving out.

There are, however, many other issues to consider when one spouse leaves the home, and Mackey Law Group is willing and ready provide advice if you are contemplating a divorce.

By: B. Kyle Stalnaker, Esq.