Articles Tagged with Child Support

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The short answer, yes, this happens all of the time and you should get a Florida Family Law attorney to review the documents and represent you to protect your legal rights. In Florida, historically, when a parent is looking to collect child support from another parent, they go to court, the judge determines whether the man is the father, they create a child support amount, and everyone carries on from that point.  Another procedure has been getting more popular in recent years, however, and it is called the administrative establishment of child support.

The Department of Revenue is the state agency that works with custodial parents to collect child support, both from citizens who are in need of legal help for a small fee and also from citizens who receive public assistance for their children.   The law allows the Department of Revenue to either use circuit courthouse to establish child support, or to use the administrative process.  In the administrative process, parents are sent a letter that the Department of Revenue has started a case against them, and gives the parents twenty days to respond. Unlike the procedure in circuit court, no one comes out to serve the paperwork, they just receive a certified letter in the mail.  It is assumed that if a person receives a letter, or a letter is signed for by a household member that the mail will be read by the addressed person.

This may not always be true, and can result in a child support order being entered against you, without going to court. If the parent does not respond, then the procedure moves forward, and with or without the involvement of the other parent, child support will be established, and will be a court order with the same effect of one that you would get from the courthouse.  So, it would be possible for a person to have a child support, and not know it if they did not open the letter that they received from the Department of Revenue.  This can have huge effects on the paying spouse, because if they are not aware of it, and their case does not have an income deduction order, then obviously, the Department of Revenue can seek to suspend their driver’s license, or any other method to make someone pay their child support.   Not only that, but if a parent wishes to have a DNA test or has a question whether they are the father or not, that issue can be addressed in the administrative process but only if the parent takes the necessary steps to participate.

Military-Service-300x211In the State of Florida, one of the most unique issues in a military divorce is the calculation of alimony and child support based on the income of the parties.  When one spouse is OR both spouses are employed as service members, it is important to recognize that aspects of income, some not even taxable by the IRS, will be considered income when it comes to providing for your children and former spouse after a Florida Dissolution of Marriage.

Calculating income for a Florida military divorce or paternity action creates special issues, because of the differences in how service members are compensated as compared to the civilian workforce.  Most of the pay information is found on the Leave and Earning Statement, which details how much you (or your partner) earns, their rank, years of service, but also any deductions. In every day terms, this is essentially the equivalent to your pay stub.

When considering what is inclusive income, a Florida court will consider the service member’s pay first. Thus, the basic pay, hazard pay, combat pay, and flight pay will definitely be considered in the calculation of the available income. These forms of pay are usually taxable, therefore it should come as no surprise that they are income.  Military families need to also include the allowances that decrease a service member’s cost of living, such as housing allowances (BAH), disability pay, subsistence allowance (BAS), per diem payments, and cost of living adjustments (COLA). These “allowances” not only decrease the daily living expenses of the military spouse, but also act as an increase in their income, and become a complicated issue for family law judges to determine when considering child support calculations. These additions are usually considered to be income, as they are cash benefits which ultimately would be considered components of gross income when calculating child support of the families’ children.

divorce-300x216The Florida Statute governing child support is 61.30. This statute covers in great depth the child support laws in Florida. The statute covers the base level of financial support for each child support obligation based on the household income and also explains in great depth how child support should be calculated for an after born child. Child support is calculated by taking the combined monthly income of both parties and factoring in day care costs, health insurance costs, prior support orders in effect, and few additional factors are also considered. In the instance that a parent has an existing ordered child support obligation and then have a child subsequently born the initial child support obligation for the first child’s benefit will NOT be lowered due to the birth of the second child.

The legislature created this statute in order to prevent a child born before another from being ripped of the support that they were awarded. While the operation of this law may not always have the effect of the birth order taking precedence this is referred to the prohibition of a downward modification as a result of an after born child. The statute does not operate in terms of birth order; instead the operation is in terms of the chronological sequence of judicial orders. Therefore, if a client has a 12 year old son, and he has contributed to the support of this child without a judicial order in place, if the man then has another child and he is ordered to pay child support regarding the second born child, the court is not to consider the amount of support he voluntarily gives the 12 year old child in the initial calculation. The court can take into consideration the older child to support a downward departure from the child support calculation.

If we revisit the previous scenario and the parent was paying child support to the 12 year old in furtherance of a child support order then then second born child’s support amount would be calculated by taking the parent’s income and deducting the amount of child support already paid to the 12 year old THEN calculating the support amount. There are numerous benefits to having a child support order in effect for a parent who is receiving support. The order would solidify the support obligation, allow for a child not to have their support amount reduced by an” after born” child, and it would allow for a calculation of arrearages if support is not paid.

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Parents often express a desire to modify or suspend their child support obligation. The reason for the desire often varies, I’ve heard things such as, the other parent doesn’t mind not receiving support, the child support amount is financially taxing, the child doesn’t need that much money, or that there has been a change in the financial ability to support the child. While the desire to change the child support obligation may be for any of the listed reasons or for another reason entirely, one must understand that a Florida court will grant a modification of child support in the instance that there is a substantial change in circumstances upon which a modification would be granted. It is important to realize that while many of the reasons listed above may seem like valid reasons to modify the child support obligation, most of them would be invalid reasons alone to justify a modification. The most legally sufficient example for a modification, of the examples provided, would be that there has been a change in either party’s financial ability to support the child.

Fla. Statute 61. 30 (1) (b) provides a bit of insight into what constitutes a substantial change in circumstances to warrant a modification of child support. The statute explains that “… 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 or $50.00, whichever amount is greater, before the court may find the guidelines provide a substantial change in circumstances.” A substantial change in circumstances warranting a modification comes in various forms. However, it is essential to recalculate the child support amount based on the changed circumstances and determine if the case has validity for a modification at the outset of the case. A change in either party’s income, a change in timesharing, changes with healthcare, and retirement are all on their face changes in circumstances, but the changes must cause a shift to the child support obligation beyond 15% of the current child support award or $50.00, whichever is greater. When parties earning a higher combined monthly gross income the child support guidelines, typically, do not adjust downward or upward as easily as they do when parties have a lower combined monthly gross income. For example, for a family with a combined parental income of $20,000 if one party began receiving an additional $4,000 a month, based on a variety of other factors daycare costs, health insurance, timesharing, etc., that increase in income may not constitute a “substantial change in circumstances” to a degree of 15% of the current child support obligation. Whereas, a family with an original combined income of $6,000 a party who receives an additional $1,000 a month, is a more likely circumstance to cause the child support guidelines to shift to the degree of $50.00 or 15%, whichever is greater. The reason circumstances like this occur, is because the needs of a child, under the Child Support Guidelines, eventually reaches a cap. The cap is based on the statutory standard needs of a child. While the Child Support Guidelines offer a wonderful resource for setting minimums for child support amounts, these amounts can be deviated from based on the circumstances and following a motion by one of the parties.

If you are contemplating requesting a modification of your current Child Support award or obligation contact  Wood, Atter & Wolf, P.A. to help you determine if your case would support an upward or downward modification of child support.

 

FatherCustodyFlorida statutes require unmarried fathers to establish Paternity. While many parents believe merely signing a birth certificate is sufficient to establish rights to timesharing and parental responsibility regarding the child, it is not. I see many fathers who were never married to the mother of their child(ren) who act under the presumption that they have rights to see their child(ren), prior to legally establishing those rights. While each parent may not have the rights to timesharing with their children, each parent has a responsibility to support their children.

Through the Florida Courts an obligation for payment of child support can be established without establishing a right to timesharing. Florida Statue 409.256 allows for the state to begin a Paternity action in the following circumstances: the child’s paternity has not been established, when no one is named as the father on the child’s birth certificate or the person named as the father is the putative father named in an affidavit or a written declaration as provided in subparagraph 5 of the statute, The child’s mother was unmarried when the child was conceived and born, The department is providing services under Title IV-D., or The child’s mother or a putative father has stated in an affidavit, or in a written declaration as provided in s. 92.525(2), that the putative father is or may be the child’s biological father. The affidavit or written declaration must set forth the factual basis for the allegation of paternity as provided in s. 742.12(2).

While the establishment of child support payments without the establishment of timesharing for a Father can occur in numerous circumstances, I typically see it occur after the mother seeks state sponsored aid, which would fall under the category of the department providing services under Title IV-D. Often times when a mother is in need of state financial assistance, such as WIC, food stamps, or HUD housing, her case worker will request will inquire as to the support she is receiving, or not receiving, from the father of her children. The state will then seek to establish paternity of the child for the purposes of implementing a child support obligation on the father. Since the establishment of a child support obligation does not necessarily establish any rights of the father over the child, the father should file with the putative father registry in the State and file a petition to establish his parental rights. Filing with putative father registry allows for the State to be on notice that there may be a child that is biologically connected to the registered man and if anyone ever tries to terminate the parental rights of the child, then the registry is checked for a potential father of the child. Whereas, filing a petition to establish parental rights will allow for the establishment of timesharing, parental responsibility, and a child support arrangement (if one is not already in place).