Introduction
In Florida, Child Support is controlled by Florida Statutes and by the vast body of case law that is created by Judges. A child support calculation can be quite complex and you should contact an experienced child support attorney if you have questions about child support. Your local Brevard County child support attorneys, Mario, Gunde, Peters, Rhoden & Kelley have decades of experience helping clients with their child support problems.
Principles
61.29 Child support guidelines; principles. – The following principles establish the public policy of the State of Florida in the creation of the child support guidelines:
(1) Each Parent has a fundamental obligation to support his or her minor or legally dependent child.
(2) The guidelines schedule is based on the parent’s combined net income established to have been allocated to the child as if the parents and children were living in an intact household.
(3) The guidelines encourage fair and efficient settlement of support issues between parents and minimizes the need for litigation.
Subsection (1) provides that both parents are obligated to support their child. The mother and father each have the legal obligation. Under the guidelines, each parents’ income is considered and the parent with the greater guidelines obligation becomes the payor parent. If a parent is able to work but refuses to work income will be imputed to that parent. A parent cannot legally abandon a child and thereby terminate the obligation to financially support the child.
Subsection (2) sets out the general principle behind the amount of child support that should be ordered. The legislature tried to estimate what portion of an intact families’ income would be spent on the child. Of course, in an intact family the amount spent on a child varies significantly from family to family. Also, the amount would vary from year to year within a particular family. In the end, the estimate is a very rough estimate. Daycare and healthcare can be significant expenses incurred on behalf of a child. The child support guidelines include daycare and healthcare expenses in the calculation.
As stated in subsection (3), the idea behind the guidelines was to make it possible to calculate the amount owed for child support. Before the guidelines were enacted, the amount of child support was a seat of the pants determination by each particular judge. The amounts ordered could vary wildly from judge to judge and case to case. Attorneys could argue endlessly for one amount of child support or another. It was hoped that with the child support guidelines in place litigation over the amount of child support would decrease. Unfortunately the guidelines are very complex and there is still a tremendous amount of litigation over child support. Nevertheless the guidelines do provide a framework for how to calculate a child support amount. An experienced child support attorney can help make sure the amount of child support in your case is correct.
Child Support is for the benefit of the child and not the parent. That is the theory. In reality, child support is paid to a parent and absent neglect that parent can spend the money as they see fit. A parent can use child support money for beer and cigarettes and feed the child rice and beans every day. No accounting has to be made to the court or other parent.
CHILD SUPPORT GUIDELINES
Florida Statute 61.30 sets out how to calculate child support in Florida. This article will go through the statute and provide a brief explanation of what the statute means and how it actually works in practice.
61.30 Child Support guidelines; retroactive child support.
(1)(a) The child support guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding for such support or in a proceeding for modification of an existing order for such support, whether the proceeding arises under this or another chapter. The trier of fact may order payment of child support which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate. Notwithstanding the variance limitations of this section, the trier of fact shall order payment of child support which varies from the guideline amount as provided in paragraph (11)(b) whenever any of the children are required by court order or mediation agreement to spend a substantial amount of time with either parent. This requirement applies to any living arrangement, whether temporary or permanent.
This is a long paragraph but we can break it down so it is easy to understand. First, the section states that Florida Statute 61.30 presumptively establishes the amount of child support the judge shall order. What that really means is after you use the guidelines calculation to get a dollar figure for child support, the judge can still adjust the amount.
Florida Statute 61.30 (1)(a) does state that it is the only way to calculate child support in Florida. Most commonly, child support is ordered as part of a divorce or paternity case. However, child support can be ordered in other types of cases such as dependency or during an injunction proceeding.
The section allows a judge to make a small adjustment to child support of 5% after considering the circumstances of a particular case. The section sets out a few things the judge can consider, such as age of the children, but does not limit the factors the judge can consider. In a particular case, a creative attorney can argue just about anything as a reason to make a 5% adjustment. As long as the adjustment is 5% or less, the Court does not have to explain in the Order why the child support amount was adjusted.
The judge can order a child support amount which varies more than 5% from the calculated amount but then the judge must explain, in the Order, why the guidelines amount is inappropriate or unjust. This makes it possible to appeal the Judge’s Order. If you want the judge to adjust child support more than 5%, you must give the judge a good reason to do so. One reason could be that a parent has substantial assets but not much income. A guidelines child support calculation considers income but not assets. It would be unfair for a parent with $10 million dollars in assets but little income to pay a minimal child support amount. Another reason to adjust the child support amount more than 5% could be a disability of the child. A disabled child can require many sacrifices by parents one of which may be financial. If the amount of overnights are low but the child spends many days with a parent, the judge should adjust the child support amount. This situation can arise in many ways but a common way is when a parent works at night. That parent may have few overnights but watch the children most days while the other parent is at work. It would be unfair to not adjust the child support amount.
At the end of section (1)(a) the statute requires the judge to adjust the child support amount if the children are court ordered to spend a substantial amount of time with a parent. Substantial amount means 20 percent of the overnights. The guidelines calculation is based on the amount of overnights a child spends with a parent.
61.30(1)(b) The guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent of $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.
To modify a final judgment in a family law case, you must show a substantial change in circumstances. This applies to alimony, timesharing, parental responsibility, as well as child support. Section (b) provides that there must be a change in the child support amount of at least 15 percent or $50.00 before the Court can change the child support payment. Even if the 15 percent or $50.00 threshold is met, the Court can decline to change the amount of child support ordered. In practice, the judge is almost always going to order that the new, correct, child support amount be paid.
61.30(1)(c)
(c) For each support order reviewed by the department as required by s. 409.2564(11), if the amount of the child support award under the order differs by at least 10 percent but not less than $25.00 from the amount that would be awarded under this section, the department shall seek to have the order modified and any modification shall be made without a requirement for proof or showing of a change in circumstances.
Section (c) is referring to child support cases that are handled by the Department of Revenue. If a parent applies for any help from the State of Florida, the Department will try to recover the money or value of services from the other parent. This would apply to Medicaid, housing, health care, food, or any other type of assistance. Florida Statute 409.2564 (11) requires the Department to review support orders once every three years. 61.30(1)(c) provides that the new calculation must differ from the existing order by at least 10 percent but not less than $25.00 for the Court to Order a new child support payment. If the threshold is met the Department must file a Petition and ask the Court to modify the amount ordered to be paid. The normal standard to modify a final judgment – a substantial change in circumstances – is waived. This waiver is extraordinary and reflects the summary nature of many Department of Revenue proceedings. The Department and Judge (or General Magistrate, or Hearing Officer) will want to conduct the hearing as fast as possible. Often the responding parent is not represented by counsel. This can be a mistake with long lasting consequences. If the Department of Revenue is seeking to have you pay child support, you should contact a Brevard County child support attorney.
61.30(2) provides;
(2) Income shall be determined on a monthly basis for each parent as follows:
The first step in calculating child support is to establish the monthly income of each parent. To calculate a monthly pay amount for a parent who is paid weekly, take the weekly gross and multiply it by 52, the number of weeks in a year. This will give you a yearly income amount. Then divide the yearly income by 12, the number of months in a year, to get the monthly gross income.
To calculate the monthly pay amount for a parent who is paid bi weekly (every two weeks) take the gross bi weekly pay and multiply by 26, which gives you the yearly income. Then divide by 12 to get the monthly gross income.
To calculate the monthly pay amount for a parent who is paid twice a month – typically on the first and 15th of each month – take the gross pay from either paycheck and multiply by 24. This gives you the yearly income figure. Then you divide by 12 to get the monthly gross income.
61.30(2)(a) Gross income shall include, but is not limited to, the following:
61.30(2)(a) provides a list of some types of income that would be included in a child support calculation. The list does not, and does not try to, list every possible source of income. However, every type of income, from any source is counted as income for calculating child support.
We will look at the 14 listed income sources;
(2)(a)1. Salary or wages.
Most people who work for someone else, or a business, receives either a set salary or hourly wages. Typically, a salary is not for a set amount of hours of work. Wages are usually referred to as hourly wages where someone is paid for each hour worked. If a parent works less than 40 hours a week – whether paid a salary or by the hour – the court may impute income to the parent for the equivalent to a 40-hour week.
(2)(a)2. Bonuses, commissions, allowances, overtime, tips, and other similar payments.
These types of payments are counted only if they are a regular part of a parents’ income. A one-time bonus would not be counted unless it was very large. Wall street brokers may be paid millions in bonuses that are based on performance. However, even though they are paid on an irregular basis, the size of the bonus would require it be counted. A small bonus that is received on a regular basis would also be counted as income.
The same principle applies to overtime pay. While a court cannot require a parent to work overtime, a parent who regularly works overtime will have that extra income counted in a child support calculation.
Tips can be a problem area. A cab driver, exotic dancer, or server may make a substantial portion of their income in the form of cash tips. This income can be very hard to track and hard to prove in court. This is not always because a parent is trying to under report income but sometimes because a parent does not keep good records of this income.
(2)(a)3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income.
Expert advice is very helpful if you are going to challenge the amount of money a parent claims they make from business income. A CPA can review the books for the business and determine the actual income. A judge will usually accept a tax return to determine business income. However, proper cross examination and the testimony of a financial expert can be used to successfully challenge a parent’s proffered income. Even if the books seem correct, you can still look at a parents’ spending. If a parent is spending more than they claim to be receiving in income, they should be pressed to explain the difference. Maybe they are borrowing money, selling assets, or receiving gifts. These are reasonable explanations but the opposing parent should demand proof. A professional gambler’s winnings would be considered income for child support purposes as would earnings from illegal activity. A parent may have problems proving income from illegal activity but if you can prove an illegal activity produced income it can be used as a source for child support. A person who derives income from illegal activity may want to settle the issue before depositions are taken and subpoenas are issued.
(2)(a)4. Disability benefits.
Disability benefits are usually protected from creditors but they are counted as income in a child support case. All types of disability payments are counted as income including social security disability, military disability, federal employee disability, and disability benefits from a private company. Also counted as income are disability payments from private disability insurance.
(2)(a)5. All workers’ compensation benefits and settlements.
Workers’ compensation is replacement money for lost income. As such it is considered income for child support purposes. This includes regular payments, arrearages, and settlement of claims.
(2)(a)6. Reemployment assistance or unemployment compensation.
Even if a parent is unemployed, they still have a legal and moral duty to support their children. A parent may be having tough times but the children still have to eat. Unemployment compensation is usually a fraction of what a previously employed parent was making. Nevertheless, unemployment compensation will be used in calculating child support.
(2)(a)7. Pension, retirement, or annuity payments.
These payments are usually from previous employment which may have even taken place before the birth of the child that needs support. While it may stretch the definition of income, these payments are used in a child support calculation.
(2)(a)8. Social security benefits.
People receive social security benefits because they qualify by age or because they are disabled. Both types of benefits are used in a child support calculation.
(2)(a)9. Spousal support received from a previous marriage or court ordered in the marriage before the court.
Spousal support, also known as alimony is income. Alimony payments are deducted off the income of the payor and taxed as income to the payee. In a case where there are going to be both child support and alimony payments, the alimony payment must be established first. After the alimony payment is factored into each parents’ gross income then, and only then, can the child support calculation be made. One of the few things that can reduce a child support amount is a prior order to pay alimony to a former spouse. This is a rare instance where an adult benefits at the expense of a child.
(2)(a)10. Interest and dividends.
Earnings from stocks, mutual funds, bonds, certificates of deposit, and the like, are included in a child support calculation. This is true for tax free, pre tax, and post tax earnings.
2(a) 11. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income.
Profits from rental properties are part of gross income in a child support calculation. The subsection allows deductions for, “ordinary and necessary”, expenses. This means you can deduct expenses to maintain the property but not improvements. Painting, lawn care, even a new roof is a normal part of maintaining a property. A new pool would be an improvement and not deductible.
(2)(a)12. Income from royalties, trusts, or estates.
Current income from royalties will be considered as part of gross income in a child support calculation. This could be from patents or copyrights a parent holds. It does not matter when the patent or copyright was acquired or when it started producing income.
If a parent is a beneficiary of a trust or estate and is actually receiving money that money will be figured into child support. Even if the beneficiary parent has no control over the trust or any payments, payments received will be considered income.
(2)(a)13. Reimbursed expenses or in kind payments to the extent that they reduce living expenses.
A business may provide an employee with a car and gas money, food expenses, or telephone and internet expenses. The portion, if any, that reduces a parents’ living expenses will be considered income. In some jobs, housing is provided and that benefit can be income. Basic Allowance for Housing (BAH) is available to military families and paid as a dollar amount on the Leave and Earnings Statement (LES). BAH is income and will be included when calculating child support.
(2)(a)14. Gains derived from dealings in property, unless the gain is nonrecurring.
If a parent is in the real estate business and buying and selling property, the profits are income. If a parent wants to carry over past losses to reduce current income, it is advisable to hire a financial expert. Just because the IRS did not disallow certain deductions does not mean a judge will automatically follow along. A one time sale of a residence or other property can be seen as just transforming an asset from one form to another. The profit would not be seen as income.
61.30(2)(b) Monthly income shall be imputed to an unemployed or underemployment parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. If the information concerning a parent’s income is unavailable, a parent fails to participate in a child support proceeding, or a parent fails to supply adequate financial information in a child support proceeding, income shall be automatically imputed to the parent and there is a rebuttable presumption that the parent has income equivalent to the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census. However, the court may refuse to impute income to a parent if the court finds it necessary for that parent to stay home with the child who is the subject of a child support calculation or as set forth below:
1. In order for the court to impute income at an amount other than the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census, the court must make specific findings of fact consistent with the requirements of this paragraph. The party seeking to impute income has the burden to present competent, substantial evidence that:
a. The unemployment or underemployment is voluntary; and
b. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.
2. Except as forth in subparagraph 1., income may not be imputed based upon:
a. Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or
b. Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties’ existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.
In the United States, full time employment is considered to be working 40 hours a week or more. If a parent is working less than 40 hours a week, or not working at all, the opposing parent can attempt to convince the judge to impute income to the underemployed parent. A parent can also be working 40 hours a week but still be considered underemployed if they are earning below their potential. For example, a parent may have earned a six figure income working as an engineer for the past 20 years. Then the parent quits that job and takes a 40 hour a week job making minimum wage. The judge could certainly find the parent is voluntarily underemployed and use the income the parent could be making to set the child support amount. It could be hard to collect the full child support ordered if the parent is not only underemployed but also has no assets. The Court can hold the parent in contempt but can only send the parent to jail if the Court finds the parent has the present ability to pay.
To impute income to a parent it is helpful to employ a vocational evaluator or other qualified expert. The expert can examine the parent, their work history and their ability to earn income.
The expert can testify about what jobs are available in the community that the parent is qualified for. The expert would determine what jobs the parent could get and what the pay would be. The Court can use the testimony provided by the expert to make a finding that the parent is voluntary unemployed or underemployed and impute a monthly income to the parent.
Sometimes a parent will fail to come to court even after being informed of the hearing. This is a mistake. The hearing will still go forward and most judges will try to make a fair determination of a child support amount. Despite the statute saying the court shall impute income equivalent to median income, the court may hesitate to do so if the resulting order is unrealistic. Also, there may not be any evidence before the court as to median income. For example, if a parent testifies the absent parent has never held a job making more than minimum wage, it would be futile to hit the absent parent with a big child support payment. Better to be realistic and not create future trouble.
If you are a parent wanting to have the court impute income to the other parent, you have the entire burden of proof. The statute says you have to present, “competent, substantial evidence”. Testimony by one parent about what they think the other parent could make is usually not allowed. Expert testimony, admissions and facts regarding what a parent has made in the past is good evidence that may be persuasive to the court. Imputing income can be difficult and you should hire an experienced child support attorney to assist you.
Not every type of money a parent receives is counted as income in a child support calculation. Public assistance is specifically excluded. 61.30(2)(c) provides:
(c) Public assistance as defined in s. 409.2554 shall be excluded from gross income.
Florida Statute 409.2554 states;
“Public assistance” means money assistance paid on the basis of Title IV-E and Title XIX of the Social Security Act, temporary cash assistance, or food assistance benefits received on behalf of a child under 18 years of age who has an absent parent.
Food and money are part of the definition but other benefits from the government are not. Housing assistance, free or reduced cost medical or dental care, educational, transportation, or clothing are examples of benefits that could be included in gross income. As a practical matter, the value of the benefit would be hard to prove.
After gross income has been determined then we need to look at deductions from gross income to arrive at net income. Florida Statute. 60.30 (3) provides;
(3) Net income is obtained by subtracting allowable deductions from gross income. Allowable deductions shall include:
(a) Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and income tax liabilities.
In Florida, there is no state or local income tax however if a parent works out of state, they may have to pay state income taxes or even local income taxes. Florida recognizes this may occur and allows the deduction off of income. When preparing a child support worksheet, the actual filing status and actual number of dependents claimed are used. Even after a divorce is filed, it usually results in a lower overall tax liability to file married filing jointly. If you are still married on December 31st of a particular year then you can file married filing jointly for the proceeding year.
(3)(b) Federal insurance contributions or self-employment tax
If you are self-employed, you have to pay extra taxes – usually by quarterly tax payments. These reduce your net income for a child support calculation. Federal employees have mandatory insurance payments and these payments are subtracted off of gross income when determining child support.
(3)(c) Mandatory union dues.
If you are in a union, you must pay dues. The amount of dues you pay is subtracted from gross pay when doing a child support calculation.
(3)(d) Mandatory retirement payments.
Retirement payments, if they are mandatory, can be subtracted from gross income. These must be payments over which a parent has no control and no ability to opt out. Many private companies have moved away from mandatory contributions to a pension plan and have voluntary payments into a company sponsored 401(k) plan. Sometimes the company will even match all or a part of your contribution. No matter how good a deal a company may offer, voluntary contributions are not deductible off of income for purposes of a child support calculation. This is still correct even if the contributions reduce your income for purposes of calculating your Federal Income Tax.
(3)(e) Health insurance payments, excluding payments for coverage of the minor child.
A parents’ cost for health care is a deduction from gross income. The payment can be voluntary or mandatory, both count as a deduction. The deduction is for the cost to insure only the parent. Costs to insure a current spouse or your children are not deductions. If you have health insurance through a private employer, your human resources department can probably provide you with a price sheet breaking down the cost.
(3)(f) Court-ordered support for other children which is actually paid.
If a parent is already paying child support for another child or children the payment is a dollar for dollar deduction from gross income. The parent must actually be making court-ordered payments. If a parent is doing the right thing, and voluntarily supporting their other children, they do not get a deduction from gross income. The good parent should immediately get their payment covered by a court order.
Court ordered payments that are not currently being made do not reduce gross income for child support purposes. It is advisable to start making the previously ordered payments so the new child support payment amount will be lower.
(3)(g) Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court.
Alimony or other form of spousal support is a deduction for purposes of a child support calculation. The alimony must be court ordered and the payments must actually be made. When a court is considering what alimony and child support payments to order the court must determine alimony first. Alimony is treated as income to the parent receiving alimony and is a deduction for the parent paying alimony.
The statute provides the alimony payments can be for a previous marriage as long as there is an existing court order. This means the previous spouse will continue to receive their existing payments even if the subsequent children may get short changed.
There are many factors to consider when a parent is asking for both alimony and child support. Alimony can drive up income for federal income tax purposes. Sometimes a parent may want less alimony, to avoid a higher tax bracket, and more child support. Of course, the payor spouse may desire the opposite. It is wise for parents to cooperate to structure alimony and child support to maximize the benefit to the parents and children and avoid tax payments. An experienced attorney and a financial expert can be helpful.
61.30(4) Net income for each parent shall be computed by subtracting allowable deductions from gross income.
Section (4) reiterates what the start of section (3) said which is that you start with gross income from a parent then subtract out all allowable deductions to arrive at the net income figure. Once you have a net income figure, you can proceed with the child support calculation.
61.30(5) Net income for each parent shall be added together for a combined net income.
The first step in the calculation is to add the net income of each parent together to get the total net income for the family. Notice only the net income for the parents is used and new spouses, relatives, or children is not used.
61.30(6) The following guidelines schedule shall be applied to the combined net income to determine the minimum child support need:
Next we come to the guidelines schedule. Click on the link to see the entire schedule. The schedule starts with a net monthly income of at least $800.00 and continues at $50.00 increments until a family’s net monthly income reaches $10,000. The chart shows the minimum child support needed for each level of income, and for one to six children.
(6)(a) If the obligor’s parent’s net income is less than the amount in the guidelines schedule:
1. The parent should be ordered to pay a child support amount, determined on a case-by-case basis, to establish the principle of payment and lay the basis for increased support orders should the parent’s income increase.
2. The obligor parent’s child support payment shall be the lesser of the obligor parent’s actual dollar share of the total minimum child support amount, as determined in subparagraph 1., and 90 percent of the difference between the obligor parent’s monthly net income and the current poverty guidelines as periodically updated in the Federal Register by the United States Department of Health and Human Services pursuant to 42 U.S.C s. 9902 (2) for a single individual living alone.
(6)(a) 1. And 2. gives the court some guidance as to what to do when a parent’s net income is less than what the guidelines say they should pay. This can occur when there is a substantial difference in the income of the parents and one parent has most of the timesharing. This is an uncommon situation and a court can be reluctant to order a parent who is living in poverty to pay any significant amount of child support. However, the section does say one purpose is to establish the principle of making child support payments. This ties into Florida Statute 61.29 that says parents have a legal and moral duty to support their children. This applies to every income level.
(6)(b) For combined monthly net income greater than the amount in the guidelines schedule, the obligation is the minimum amount of support provided by the guidelines schedule plus the following percentages multiplied by the amount of income over $10,000:
Number of Children:
- One = 5.0%
- Two = 7.5%
- Three = 9.5%
- Four = 11.0%
- Five = 12.0%
- Six = 12.5%
(6)(b) gives a court specific guidance on how to calculate a child support payment if the parent’s net income exceeds $10,000. Notice that, just like the guidelines schedule as the number of children increases the percentage amount of child support rises at a slower rate. In other words, a parent receives less per child as the number of children increases.
(7) Child care costs incurred due to employment, job search, or education calculated to result in employment or to enhance income of current employment of either parent shall be added to the basic obligation. After the child care costs are added, any moneys prepaid by a parent for child care costs for the child or children of this action shall be deducted from that parent’s child support obligation for that child or those children. Child care costs may not exceed the level required to provide quality care from a licensed source.
If you are working and have young children, you may have a significant child care expense. For workers at the lower end of the pay scale, the child care cost can be overwhelming. If you work a set amount of hours at a conventional job then you can easily show you need a certain amount of child care. It can be more of a problem if you are in school. However, you will have your class schedule and grades to prove you are in school. Time to study may be more of a challenge. To convince a judge you need a significant amount of child care to search for a job, you will need to keep extraordinary records and documentation of what exactly you are doing to search for a job.
While the section says a parent can deduct prepaid child care costs the child support worksheet and common sense do not support a prepay arraignment. The timing of the payment is not important and the Court’s Order will just have a monthly amount. Any deviation in the payment of the set amount can cause problems in tracking the payment.
While the cost can be significant, you cannot pay in excess of the market rate for child care and expect the court to use the higher number. Sometimes people want to claim a friend or relative is providing child care that is worth an extra cost. The court will not accept such a claim absent special needs or other unusual circumstance.
The Court will not order payment of child care expenses incurred for personal enrichment classes such as yoga, or photography or so a parent can do enjoyable activities.
(8) Health insurance costs resulting from coverage ordered pursuant to s. 61.13(1)(b), and any noncovered medical, dental, and prescription medication expenses of the child, shall be added to the basic obligation unless these expenses have been ordered to be separately paid on a percentage basis. After the health insurance costs are added to the basic obligation, any moneys prepaid by a parent for health-related costs for the child or children of this action shall be deducted from that parent’s child support obligation for that child or those children.
Florida Statute 61.13(1)(b) tells the judge that anytime the court orders child support the court shall also order a parent to provide health insurance for the child if the cost of health insurance is reasonable. Florida Statute 61.30 (8) allows the cost to be deducted from the child support payments. This is only the cost incurred for that child or children and not the cost the parent pays to insure themselves. Section (8) also provides that the parent paying uncovered medical, dental, and prescription medication expenses gets a credit off of their child support payment. In practice, this is unworkable as the amount of uncovered medical expenses a parent pays can fluctuate considerably. Standard practice is for the parents to each pay a percentage of the uncovered medical expense. If one parent pays the entire cost, they would be entitled to be reimbursed up to their percentage share.
(9) Each parent’s percentage share of the child support need shall be determined by dividing each parent’s net monthly income by the combined net monthly income.
The percentage share of child support is important for several reasons. First and most obvious is the higher a parent’s percentage share is the more they will have to pay in child support if they are the obligor. The less their percentage share, the less they have to pay.
The percentage share is also frequently used to determine who pays what share of various other expenses such as uncovered medical expenses and extra-curricular activities. In a contested case the court is required to use the percentage share for medical expenses. In addition, the percentage share sets up a framework for discussion of the payment of expenses not covered by the final judgment. If an expense like summer camp or cosmetic orthodontic work comes up, the established percentage share provides a starting point for a discussion about how much each parent will pay. The psychological pressure will be on the parent who does not want to pay their percentage share. So, keep in mind that while a particular child support number may at first seem reasonable, you may be setting the stage for payments outside your comfort zone.
61.30 (10) Each parent’s actual dollar share of the total minimum child support need shall be determined by multiplying the minimum child support need by each parent’s percentage share of the combined monthly net income.
To arrive at the required child support payment, you look at the guidelines schedule then multiply the schedule number by each parents’ percentage. The resulting number will be the child support payment. The statute, in several places, refers to, “the minimum child support need”. For any practical purposes, this does not mean anything. The Legislature, apparently, just wanted to emphasize that a parent could pay more in child support if they chose to. If you are thinking about voluntarily paying more in child support, you should consult an experienced child support attorney. While paying more in child support than ordered, if you are able, may be laudable, do not expect credit from a court for the extra payments. If your financial picture changes and your court ordered payments become difficult, you are not entitled to a credit for your extra payments. It is best to pay your child support exactly as ordered. If you want to do something else you should speak to an experienced child support attorney.
61.30 (11)(a) Every family has different needs and in section (11)(a) the Legislature provided a way for a court to make an adjustment to the child support amount dictated by the schedule. The statute provides 11 paragraphs of specific reasons a court can deviate from the calculated child support payment. The time to bring a request to deviate to the courts attention is whenever child support is being considered. To convince a court to deviate from the calculated child support payment, a parent will have to bring strong evidence before the court. While a court has discretion to deviate from the calculated child support amount, courts are usually reluctant to do so. Nevertheless, if there is a reason in your case to adjust the calculated child support amount talk to one of our firm attorneys who has decades of experience litigating child support issues. Of crucial importance is the actual need, as opposed to desire, for the extra expense and the ability of the other parent to pay.
61.30(11)(a) The court may adjust the total minimum child support award, or either or both parents’ share of the total minimum child support award, based upon the following deviation factors:
- Extraordinary medical, psychological, educational, or dental expenses.
If a child has a serious medical problem, the expense can be well beyond even an intact families’ ability to pay. Even after insurance, a family can become bankrupt by the expense. If one parent balks at paying extra so the child can get critical medical care, the court may provide some relief. This could also apply to psychological or dental expenses. Some psychological or dental conditions can be life threatening.
Extraordinary educational expenses are in a different category. This paragraph does not consider special needs children as they are addressed in paragraph 6. below. That leaves extraordinary educational expenses for a child who is exceptionally bright. While it may be appropriate and desirable to provide opportunities to maximize a child’s potential, a court will need a lot of evidence before ordering extra child support.
61.30(11)(a)2. Independent income of the child, not to include moneys received by a child from supplemental security income.
A child may mature early, begin to earn significant income and not have a need or desire for support. Some children by talent or happenstance earn far more than their parents earn. At a certain point, it may become appropriate to reduce or terminate child support payments.
Supplemental security income will not be considered as a reason to deviate from the calculated child support amount. There are at least two good reasons for this. First, SSI payments are usually not that much money. Second, there must be a reason a child is getting SSI and needs the income. Most common is a disability of the child or parent.
- The payment of support for a parent which has been regularly paid and for which there is a demonstrated need.
This refers to alimony payments from one former spouse parent to another. The payment amount affects the gross income of the payor and recipient. This of course affects the child support calculation. In rare cases, the math may work out to be unfair to a parent or child. This section allows the court to make an adjustment, up or down, in the payment amount.
- Seasonal variations in one or both parents’ incomes or expenses.
Seasonal work can pay well for several months of the year. Then the next few months can be lean. If the parent is an established seasonal worker, it would be unfair to use the income from any particular month to set child support. A court should average the expected income and expenses over a year while looking at the parent’s income and expense history.
- The age of the child, taking into account the greater needs of older children.
It is not impossible to get a court to deviate from the calculated amount based on the age of the child but it will not be easy. Absent any other supporting facts, I would not spend much time arguing, a court should deviate from the basic child support amount based on the age of the child. This is especially true in a modification proceeding. To modify a final judgment, you must show an unanticipated, substantial change in circumstances. Obviously, we anticipate children getting older.
- Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though fulfilling those needs will cause the support to exceed the presumptive amount established by the guidelines.
Special needs children can result in extra expenses. If an intact family has been paying those extra expenses, it is likely a court would make an adjustment to the calculated child support amount in a divorce. After all the intact family made a determination that the child needed the extra care. It is easy to argue that support should not end just because the parents are divorcing. Of course, with a divorce there will be two households so the ability to afford all of the care previously provided to a child may be less. Also, there can be honest disagreements over how much care a child needs.
- Total available assets of the obligee, obligor, and the child.
Some parents have significant assets but little, or even negative income. The parent may spend money to support themselves but claim they cannot support their child. The judge will look at a parent’s entire financial picture and not just net income when deciding how much – if any – child support to order. The court does not have the power to order a parent to sell an asset or take other financial steps to generate cash for child support. However, the court can order a certain amount of child support to be paid. If the child support is not paid the court can enforce its order.
In some families, a child may have significant assets separate and apart from the parents. A court would not normally relieve a parent of their duty to support their child. However, circumstances do arise where a child is well off financially and a parent is not. A court can assess the entire financial position of the parents and child to make a decision on the level of child support to order.
- The impact of the Internal Revenue Service Child & Dependent Care Tax Credit, Earned Income Tax Credit, and dependency exemption and waiver of that exemption. The court may order a parent to execute a waiver of the Internal Revenue Service dependency exemption if the paying parent is current in support payments.
A court can consider the taxes that a parent pays and if a parent will receive an Earned Income Tax Credit. The Earned Income Tax Credit can substantially effect a parents’ total income. The credit will not show up on a parent’s paystubs but will be on their Federal Income Tax Return.
A frequent issue in child support cases is which parent can claim a minor child on their income tax return. Unless a court orders otherwise, the custodial parent can claim the child every year. For good cause, a court can order a parent to execute IRS form 8332 waiving the exemption and permit the non-custodial parent to claim the child. In practice courts usually order parents to equally share the exemption. However, if a parent is behind on child support payments as of a certain date (usually December 31st) they may not be allowed to claim the child.
- An application of the child support guidelines schedule that requires a person to pay another person more than 55 percent of his or her gross income for a child support obligation for current support resulting from a single support order.
Some people want to interpret this section to say they can never be ordered to pay more than 55 percent of their gross income. They are incorrect. If you have children with more than one person, you can end up with multiple orders to pay child support. The total you are ordered to pay can exceed 55 percent of gross income. Some parents are under multiple child support and alimony orders. The paycheck can take quite a hit. It is smart to hire a good child support attorney to prevent excessive payments from being ordered.
- The particular parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties, such as where the child spends a significant amount of time, but less than 20 percent of the overnights, with one parent, thereby reducing the financial expenditures incurred by the other parent; or the refusal of a parent to become involved in the activities of the child.
The guidelines recognize that parents may work overnight or have other good reasons why they cannot exercise overnight timesharing. This section allows a judge or the parties to adjust the child support payment. It would be unfair for a parent who may be with the child during the day for meals and after school to not receive some credit.
Sometimes a parent wants to walk away from any responsibility for raising a child. The guidelines are based on both parents being involved with the child. Having a child costs money, time and effort. If one parent has to carry all of the burden, the court can adjust the payment amount.
- Any other adjustment that is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt that the parties jointly incurred during the marriage.
This is the catch all provision and it should not be taken lightly. An “equitable result” just means a fair result. Every family is different and you should bring any unique situation to the attention of your attorney. Maybe a third party has come along and provides substantial, or even extravagant, financial support for your children. It may be fair for you to reduce your payments of child support so you can personally provide some nicer things when your children are with you.
During the marriage, the parties may have acquired a large IRS debt, a consumer debt, or debts from medical bills. One parent may be having their tax refunds intercepted or their wages garnished. These are not allowable deductions off of gross income but a parents’ ability to pay child support – or need for child support – can change drastically from the impact of these debts. A court will want to know if the debt arose from the actions, and with the knowledge, of both parties. Also, the court may consider if the debt actually must be repaid and bankruptcy, debt forgiveness, or simply not paying are options.
61.30 (2)(11)(b) provides for a method to adjust the child support payment when each parent has a substantial amount of overnight timesharing with the child. A substantial number of overnights is defined as at least 20% of the overnights or 73 overnights a year. Unlike other parts of Florida Statute 61.30 that give the court discretion to adjust the calculated child support payment, or not, the court must adjust the child support payment amount in accord with section 61.30 (2)(11)(b).
(c) A parent’s failure to regularly exercise the time-sharing schedule set forth in the parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties not caused by the other parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule.
The wording on this section is more than a little convoluted but basically it means if one parent, of their own accord, does not exercise timesharing then the amount of child support can be adjusted. The lack of timesharing cannot be due to the actions of the other parent in restricting or denying timesharing. If a parent is failing to follow the court order, you must be assertive and insist on following the court order. If the other parent persists, contact an experienced family law attorney.
Sometimes an award of child support or change in child support amount is retroactive to the date of the filing of the petition. Under this section, child support can be retroactive to the date timesharing was not regularly exercised. The date can be difficult to prove in some cases. In other cases, it is easy to prove. For example, if a parent moves out of the state or country or in writing states they refuse to exercise timesharing. Remember the statutes says, “regularly exercise”, so a complete refusal to exercise timesharing is not required.
(12)(a) A parent with a support obligation may have other children living with him or her who were born or adopted after the support obligation arose. If such subsequent children exist, the court, when considering an upward modification of an existing award, may disregard the income from secondary employment obtained in addition to the parent’s primary employment if the court determines that the employment was obtained primarily to support the subsequent children.
A hard working parent who wants to provide for subsequent children may start working a second job. The court has discretion about including this income, or not, if a parent of the prior child tries to have their child support increased. To be clear even if you prove to the court that you only took the second job to provide support for subsequent children, the court can use that extra income to increase the child support to prior children. This discourages a parent from making an extra effort for their children. This should be against the public policy of the State of Florida. Even worse, once you have shown you can make more money and are then ordered to pay more in child support you cannot simply quit your second job and have your child support reduced. Now you are voluntarily underemployed. You can try to get a signed agreement before taking a second job that the other parent will not seek to modify child support. Also notice that working overtime is not included as a reason a court can deviate from the child support calculation. However, if you regularly work overtime that may be included in your gross income.
(b) Except as provided in paragraph (a), the existence of such subsequent children should not as a general rule be considered by the court as a basis for disregarding the amount provided in the guidelines schedule. The parent with a support obligation for subsequent children may raise the existence of such subsequent children as a justification for deviation from the guidelines schedule. However, if the existence of such subsequent children is raised, the income of the other parent of the subsequent children shall be considered by the court in determining whether or not there is a basis for deviation from the guideline amount.
This section says the court must consider the income of the other parent of subsequent children if the issue of subsequent children is raised as a defense. The legislature seems to be compelling families to think about the law when considering having more children. This section encourages parents to not have more children and if you do, be prepared to be involved in more litigation. Notice the income of a new spouse is not considered when a parent seeks an upward modification.
(c) The issue of subsequent children under paragraph (a) or paragraph (b) may only be raised in a proceeding for an upward modification of an existing award and may not be applied to justify a decrease in an existing award.
Prior children are favored over subsequent children. Subsequent children can only be used to defend a parents’ request for an upward modification. If you want to have your child support payment lowered, you have to show a permanent, substantial, involuntary, and unanticipated change in circumstances.
(13) If the recurring income is not sufficient to meet the needs of the child, the court may order child support to be paid from nonrecurring income or assets.
If a parent paying child support has low income but significant assets, the court can issue an order ordering those assets be used to pay child support. This most commonly happens when a parent has a 401(k) or IRA plan. Of course, cash sitting around can be a big fat target for the judge.
(14) Every petition for child support or for modification of child support shall be accompanied by an affidavit which shows the party’s income, allowable deductions, and net income computed in accordance with this section. The affidavit shall be served at the same time that the petition is served. The respondent, whether or not a stipulation is entered, shall make an affidavit which shows the party’s income, allowable deductions, and net income computed in accordance with this section. The respondent shall include his or her affidavit with the answer to the petition or as soon thereafter as is practicable, but in any case, at least 72 hours prior to any hearing on the finances of either party.
When a parent files a petition asking for child support they are required to file a financial affidavit. The Florida Supreme Court provides forms that can be used. Form 12.902(b) is for a parent with a gross annual income of under $50,000 and form 12.902(c) is for a parent with an annual income of $50,000 or more. If the petitioner fails to provide the financial affidavit the respondent can file a motion to dismiss under Florida Rules of Civil Procedure 1.420. The petitioner will usually file the financial affidavit before the motion to dismiss can be heard. Nevertheless, the motion to dismiss may be worth filing as the time period for the respondent to file an answer (usually 20 days) is tolled. The respondent must also file a financial affidavit but the time period to file is flexible. The financial affidavit must be filed as soon as practicable. For parents with modest income and simple finances, a financial affidavit can be completed in an hour. Other financial affidavits can take weeks or months to complete and involve the use of CPAs and other financial experts.
Once the case has been filed one party may request financial relief from the court. They may be asking for child support, alimony, or attorney fees. To make the hearing fair, the court must be able to review the finances of each party. Also pursuant to Florida Family Law Rule of Procedure more financial documents must be provided prior to a hearing requesting financial relief.
(15) For purposes of establishing an obligation for support in accordance with this section, if a person who is receiving public assistance is found to be noncooperative as defined in s. 409.2572, the department may submit to the court an affidavit or written declaration signed under penalty of perjury as specified in s. 92.525(2) attesting to the income of that parent based upon information available to the department.
This section is rarely used. If one parent considers seeking child support from a parent on public assistance, they may quickly find the other parent has little or no income. Public assistance does not count as income for child support purposes. Frequently it is not worth the money or effort to seek child support from a parent who has no income.
On the other hand, if the parent seeking child support is noncooperative, the court may simply dismiss the petition. The Department of Revenue can be persistent in seeking to recover public assistance money even if both parties are uncooperative.
Paragraph 16. directs the legislature to review the guidelines schedule every four (4) years and is not important to this article.
(17) In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. In determining the retroactive award in such cases, the court shall consider the following:
If you move out of the house where your child resides, the clock for child support starts ticking. If you did not ever reside with the child, the clock starts ticking 24 months before a petition is filed. A case can be factually difficult if a parent moves in and out of the house where the child resides or sometimes pays support and sometimes does not. The burden to prove support was paid or to prove the parents resided together is on the parent making the claim. Record keeping can help but few parents in that situation keep good records. Contact Mario, Gunde, Peters, Rhoden & Kelley and we can tell you how to keep useful records.
(a) The court shall apply the guidelines schedule in effect at the time of the hearing subject to the obligor’s demonstration of his or her actual income, as defined by subsection (2), during the retroactive period. Failure of the obligor to so demonstrate shall result in the court using the obligor’s income at the time of the hearing in computing child support for the retroactive period.
Parents’ income goes up and down. A change in income will cause the guidelines amount to charge. A change in other factors can also cause the guidelines amount to change. Timesharing, the cost of medical insurance, and daycare costs can all change and change the guidelines amount. As a practical matter, parents cannot usually prove every little change in their finances so you end up using one or two guidelines worksheets instead of many.
If a court does not have evidence of what the guidelines amount should be for a particular period, the fall back is to use current income. The theory may be that the paying parent is making more now than in the past. This may be true in general but gives a parent who previously earned more money than they currently earn to conceal their prior income.
(b) All actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.
A parent who has been supporting their child should get credit for those payments. The problem is in proving payments were made. All too often a parent pays in cash or just buys food and diapers. Remember the request for retroactive support can go back 2 years. When it comes time to offer proof, the paying parent may not have the proof.
(c) The court should consider an installment payment plan for the payment of retroactive child support.
When retroactive support is ordered, it can be substantial and far beyond the ability of a parent to pay on the spot or in a few months. Courts will frequently add 10% or 15% to the base monthly obligation so the retroactive support can be paid off.
The bottom line is when you have a child for which you may be ordered to pay support, you should consult with an attorney who is experienced in child support issues. At Mario, Gunde, Peters, Rhoden & Kelley, our attorneys have decades of experience in dealing with child support issues. We are your local firm with offices in Cocoa and Melbourne. Call today for a free consultation.
