Articles Posted in Child Support

Written by: Lenorae Atter, Attorney at Law

667996_porquet_guardiola.jpgChild support is often a topic in my divorce and paternity case appointments I have as a family law attorney in Jacksonville, Florida. As a divorce and family law attorney, I meet with clients to explain their rights and options and what are provided for under Florida law. Child support is a hot topic for many, especially when they are divorcing and there have previously been talks of college and how to pay for it. In Florida, child support is ruled by Statutes, which establish how to calculate child support and for how long child support must be paid.

During a marriage, it is common for spouses to discuss their children’s future as it relates to school and continuing on to college. College is an expense that many parents are concerned about, and rightfully so. As more kids decide to go to college due to the necessity of having a degree to find a job, parents think more about how they will pay for the rising cost of tuition and living expenses. However, when the parents decide to divorce, they now consider child support to get the kid through high school and wonder how it will impact the child’s ability to attend college.

Written by: Lenorae Atter, Attorney at Law

1319861_children_crossing.jpgFlorida child support is calculated based on child support guidelines established by statute. In Florida, child support is based on the combined income of the parties and their pro rata (apportioned rate) that they each contribute. The calculation allows for credits to be given the to the parent that pays child’s insurance and daycare expenses. As a Jacksonville family lawyer, I often explain to clients that child support is based on their relative incomes because the child is entitled to live as if the parents were under the same roof. However, once child support is established, the court can enforce any back-owed child support up to two years from the date of the original filing of a petition for support. In that situation, the court can actually establish arrearage that must be paid back, sometimes at a minimal rate.

Recently, there was an appeal regarding whether child support arrearage can have an interest rate attached to it and if there can be a change to how it is paid back, since often it is at $20 per month. The Florida appellate court laid out the following guidelines for establishing interest and payments:

1340700_playground_climbing_area.jpgChild support in Florida cases is based on the income of the parties and the total income of a shared household. The pro rata share of each party’s income is a determining factor in the overall calculation of child support. As a Jacksonville lawyer handling child support cases, I try to educate my clients on what child support is meant to provide, including a roof over the child’s head, electricity and water for the child, gas in the car to transport the child, etc. A factor in the determination of child support is time-sharing or visitation exercised by the parties. In Florida, there is an automatic calculation of time-sharing at 20% of the time and anything over that amount may be a factor in reducing the amount of child support. In addition, the Florida child support guidelines provide credits for multiple items, including but not limited, daycare expenses and health insurance. In determining the income of the parties, the Florida Statute allows for the income of the parties to be determined based on taxable and nontaxable income, so if a party is in the military that party’s BAH and BAS pay will be considered income.

Florida family law cases are often required to go to mediation to determine child support, time-sharing (e.g. visitation or custody pre 2008), and the like. A mediated agreement is an agreement between the parties regarding all aspects of the case and it is reduced to writing and entered as an order with the court. However, if the parties do not have a time-sharing plan that is ultimately formalized into writing and entered by the court, then child support may be impacted. For example, if the case ONLY involves child support, such as cases brought by the Florida State Department of Revenue, then child support will be calculated without a time-sharing plan.

Sometimes, parents decide that they do no need to go to court to establish a time-sharing plan because they already have a verbal agreement and there are no visitation issues associated with their case. As such, the parties may allow the court to determine child support without actually entering a true time-sharing plan with the court. However, in 2011 the 1st District Court of Appeals in Florida made it clear that child support calculations may only defer from the usual 20% time-sharing credit IF the time-sharing plan is reduced to writing and entered as a time-sharing plan with the court. In the case before the appellate court, the parties had agreed to a verbal time-sharing plan where the nonresidential parent had the child 40% of the time. The appeals court found that unless the time-sharing plan was reduced to writing and approved by the court, then the 40% time-sharing that had been established by the parties could not reduce child support. Therefore, the paying party was required to pay more than would have been necessary had the time-sharing plan been entered with the court. DOR o/b/o Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011).

701012_writing_a_check_1.jpgA concern regarding child support and alimony, in Florida, is that once it is ordered, the other party will not pay. As a Jacksonville, Florida divorce and family law attorney, my advice is to clients is generally the same regarding this issue, once alimony and/or child support are ordered by the court, we should do an income deduction order. Such orders can be done only after the order establishing support is entered by the court. Once that is done, the court can enter an income deduction order, which lays out the payment schedule for the paying party. In addition, the income deduction order is sent directly to the employer of the responsible party so that the wages can be garnished.

Establishing child support and alimony in Florida is based on statutory guidelines. The calculation for child support is based on the income of both parties and their pro rata share of the total income of both. Credits may be given for such things as the child’s health insurance and daycare or if a parent has a prior child support obligation. Alimony does not have such a calculation in Florida, but is based on need and ability to pay.

Once the court determines how much will be owed in child support or alimony, the court may enter an income deduction order at the request of a party. The payments made by garnishment are not made directly to the receiving party, but to the State depository. In addition to the employer receiving the income deduction, the State is also provided a copy so that an account may be set-up for both the paying and receiving parties. The money is then garnished each month, in accordance with the order, for the length of time established in the order.

763367_missing_.jpgAs a Jacksonville divorce and family law attorney, I often have clients ask me if they can have the other party’s parental rights terminated due to the lack of participation in the child’s life. In child support cases, when a parent has not paid child support nor attempted to contact the child or have any visitation with the child, the primary parent grows weary of tracking down the other and tired of explaining to the child why the other parent is not involved in the child’s life. Other times that this topic arises is when a parent remarries and the stepparent wants to adopt the child. However, terminate the rights of a parent, without consent, is not as easy as 1, 2, 3 because it is a big deal to give up rights to the child and for the child to give up rights to the other parent. The Florida legislature has given provisions that protect children, but ultimately, if the other parent does not respond to the court action, then by default his/her parental rights may be terminated regardless of the provisions.

The main factor in terminating parental rights is whether the other parent agrees to the termination. Termination of parental rights may be accomplished by consent of both parties. However, if there is no one there to step-in as the other parent (e.g. stepparent adoption), then the court may require financial information for the remaining parent to show that the parent is financially capable of independently providing for the child. The reason for this is that parents that do not have financial means to provide for the child may request some type of government assistance, such as Medicaid for the child’s healthcare. The State then has an interest in the case and the Court needs to protect the State from the remaining parent presently asking for such assistance from the government and voluntarily relieving the other parent of financial support.

If the other parent’s whereabouts are unknown, then a diligent search must be completed. If the missing parent is the father, then the search must include the Florida Putative Father Registry. The Putative Father Registry is a place where men should register their name and identifying information if there is any chance that he may be the father of a child in Florida. Once the registry search is completed, that notice of search is filed with the court. In addition, regardless of mother or father, the requesting party must also publish notice of the case in a local newspaper in the city of the last known address of the parent. If no answer or reply is ever received, then parental rights may be terminated by default. Once a clerk’s default is entered, a final default hearing must be held with the Judge to determine whether it is in the best interest of the child for the parent’s rights to be terminated.

1043017_success1_srb.jpgFlorida divorce and child support laws dictate what may be paid in alimony and child support based on the facts of each case and incomes of the parties. Often, the paying party does not like the idea of writing a monthly check and the receiving party does not like worrying about whether the check is actually in the mail. Florida divorce and child support clients often ask their lawyer if there is another option and thankfully for both sides, the answer is, “Yes.” Florida Statute61.1301

An income deduction order basically garnishes the wages of the paying party per the payment agreement or order that was entered with the court. For example if you are ordered to pay child support at $300 per month and alimony at $100 per month, then the order will reflect when those payments will be made and to whom. If there is an income deduction order, then wages are garnished before you actually receive your paycheck and the money is automatically sent to the State Disbursement Unit.

Just as the paying party has an account, the receiving party has an account with the State Disbursement Unit and that account has to be set-up by the receiving party. The payments will then be made by check or they can go into an account, which the receiving party will receive a debit card for and that money can then be accessed like it’s own bank account.

998275_business_time_4.jpgChild support in Florida is based on numerous factors, including the income of the parents, the time-sharing/visitation schedule, etc. In a child support case, such as divorce or paternity actions, the Court may enter an order requiring one party to pay child support to the other, or sometimes, for both parents to pay support to a third party (i.e. when an extended family member is taking care of the child). When entering the child support obligation, the court determines which party will be responsible for paying child support based on multiple factors in the child support calculation outlined in Florida Statute 61.30. As a divorce lawyer in Jacksonville, Florida I often receive questions about how to stop child support once a child reaches 18 years of age. Thankfully, the Florida legislature recently modified how child support will be stopped instead of having to go back to court. Of course, like all new laws, it only impacts the orders that have been entered since it was entered, so there are still some hoops to jump through if your child support obligation is older than October of 2010, Florida Statute 61.13.

Florida Statute 61.13 provides some guidelines for determining the nuances of child support, such as the length of time support will be paid, how it will be paid and the like. The Statute provides that child support can be paid through an income deduction order, which means that the wages of the paying party may be garnished. When an income deduction order is entered, there are provisions that must be in the order so that the payroll department and the Florida Department of Revenue are all speaking the same language from the beginning until the end of the obligation.

Since October, 1, 2010, the order must have language not just specifying the date for the child support to begin, such as January 1, 2012, but also when it will end (e.g. the child’s 18th birthday or date of graduation if it falls within 743.07(2)). Also, the order must specify how much support will be owed each month initially, and if there is more than one child, then what the child support will be when the oldest child no longer qualifies for child support. The order will also say whether the money will be deducted monthly, bimonthly or at the payroll schedule of the responsible party.

162243_loading_zone.jpgDivorcing parties often separate before their divorce is finalized. When parties separate, even if by agreement, it does not mean that simply not having a court order means that a party is not entitled to alimony and/or child support. Spousal support is based on a need for support and the other party’s ability to pay, often this need is immediate and the party is entitled to receive funds from the date of the separation. Also, child support is designed to keep a child in the same lifestyle s/he would have if the parties were still living together, therefore, the need for child support is established at the time of the separation.

Florida Statute 61.09 allows for the determination of child support and alimony to be determined back to the date of separation. Florida Statute 61.09 states as follows:

“If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.”

1145534_3d_maze_4.jpgFlorida divorce and paternity cases often revolve around one parent saying they want “sole custody.” However, there is a difference between “sole custody” and parental responsibility in Florida Statutes. Florida divorce statutes define many terms, including parental responsibility.

Shared parental responsibility is defined by Florida Statute 61.046(17) as when both parents have parental rights of the child and share responsibility for the child’s upbringing. This is typical in most cases because both parents have a responsibility to be a parent to the child and to make all life-related decisions for the child, together, regardless of the geographical location of the parents.

If you are going through a divorce or paternity case in Florida, then you should speak with a family law attorney about your rights and options.

911431_writing_check.jpgAlimony and child support are determined by a number of factors in Florida. Some factors that are considered and used for calculations are income and health insurance, which are defined by Florida Statute 61.046.

Income is used to help determine the ability for a party to pay alimony in Florida. Income is also used to shoe a need for alimony that one party may have, such as being on a fixed income. Child support is actually calculated by using the incomes of both parties to determine what the overall income of the household would be and each parent’s pro rata share of the same. Florida Statute 61.046(8) defines income as, “any form of payment to an individual, regardless of source, including, but not limited to: wages (e.g. hourly or tips), salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government.” Basically, any form of payments received by a party.

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