Video answers from Jacksonville family law attorney A. James Mullaney about child support issues in Florida family law.
How can I legally avoid paying child support in Florida?
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First, all child support in Florida must be calculated according the child support guidelines. So to legally avoid paying child support, you need to manipulate the factors used in the calculation in order to produce a child support amount that is as close as possible to zero. In my experience, judges will allow you to pay zero if the guidelines show a low amount of monthly child support - such as $25. This can be done in some - but certainly not all cases. Second, you need to understand the factors used in the child support calculation. In Florida, child support is based on income, deductions from income such as taxes and child support paid in other cases, as well as day care expense, the child medical insurance cost, and the number of nights spent with each parent over the course of a year. The most common way for child support to be close to zero, is when the parents spend equal time with the child and earn about the same income. If the parents incomes are not roughly the same, the way to eliminate child support - other than lying about income and the other factors // which you should never do - is to vary the number of nights that each parent spends with the child until you get to a very low child support amount. The potential problem with this process is that it may result in a number of nights with the child that one or both parents are not comfortable with.
What factors does the Judge consider when calculating child support in Florida?
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The first factors is simple: How many children are involved in the case where the child support calculation is being made. The second factor is both parent’s gross incomes - in other words, your income before you pay your taxes. This includes income from any source - wages, salary, commissions, overtime, bonuses, workers comp, disability benefits, social security, investment income, rental income, etc. About the only way that I see clients receive money that is not included in their income when calculating child support is when they receive child support for a child that is not involved in the current case. It is very important to understand that just because you may be unemployed, the court is not required to use zero as your income. The court may impute an amount of income to you if it thinks that your unemployment or underemployment is voluntary. The amount imputed is based on your experience and education. The third factor to consider are the allowable deductions from income. These deductions lower your income that is used to calculate child support. The main allowable deductions include state and federal income taxes, child support that you are paying for another child that is court ordered, the cost of your own medical insurance ** not including the amount paid for the children involved in the current case **, mandatory union dues, mandatory retirement contributions, and alimony paid by you in this case or another case. The fourth factor is the number of nights that each parent will spend with the child over the course of a year. The Florida Statutes provide for a reduction in child support if a parent spends more than 73 nights per year with the child. Every night in addition to 73 will result in an increased reduction. The fifth factor is how much is paid for child care and the child’s medical insurance. For example, let’s assume that a Husband makes 60% of the money between him and his Wife and the Wife makes 40% and pays $500 per month for the child’s day care. In this scenario, the Husband would be responsible for 60% - his percentage of income - of the cost of the day care. So he is responsible for $300. Since the Wife pays all $500, the Husband would pay his share to the Wife as an additional $300 of child support. When a child no longer has a day care expense, the parent paying child support very often has sufficient grounds to have the child support amount reduced. So, these are the factors that the court will use to calculate child support. It's also important to note that the judge will not consider your rent, mortgage, car payment, car insurance, gas, food, and other expenses that I did not previously mention.
In Florida, can a parent be ordered to pay for a child’s college education?
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No. In Florida a judge will not order a parent to pay for their child's college education. Doing so would be similar to requiring child support for an adult. The exception to this rule would be if the parties agreed that one or both of them would pay for a child's college education as part of their divorce or paternity settlement agreement. In that situation, a judge could enforce the party's own agreement.
What if I need child support now and can’t wait until a Final Hearing?
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Sometimes one parent will leave a household and they will stop their financial support of their child. In these situations, there is a problem with waiting for a final hearing in a divorce or paternity case because that could take many months, if not a year. The Florida statutes do allow you to file a Motion for Temporary Needs in order to get some amount of child support for the time period shortly after the start of the case until the final hearing. These temporary needs hearing can usually be scheduled before a magistrate within a few weeks of the start of your case. At the hearing the magistrate will apply the Florida child support guidelines in order to calculate a child support amount.
How does the amount of time sharing affect child support?
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The Florida Statutes allow for a reduction in child support if the paying parent has the child for more than 20% of the nights in a year. 20% is equivalent to 73 nights over the course of a year. Each night above 73 will provide a slightly greater reduction of the parent’s child support obligation. So everything else being equal, a parent who sees their child for 80 nights per year will pay higher child support than the parent who sees the child for 90 nights per year. The reason for this is that the legislature felt that parents who spent a sizable amount of time with their children had greater costs when compared to parents who rarely saw their children. A common misconception is that having 20% of the nights will result in a 20% reduction in the child support obligation. This is not necessarily the case. The Florida Statutes provide for a fairly convoluted formula to calculate the reduction. The key to properly applying the reduction is to correctly determine the number of nights. The first thing to consider is that a potential reduction only applies to nights. Not days. For example, if a parent sees their child for 5 days per week after school, but the child only sleeps at the parent’s house for 2 nights per week. Then that parent can only apply 2 nights toward the annual total to determine the child support reduction. Next, you should make sure that you add up all the night that the paying parent will have the child over the course of a year. Other than including normal weekday and weekend visits, be sure to include nights that occur during Spring Break and Christmas Break as well as on birthdays, Mothers or Fathers Day, and other holidays such as the 4th of July, Memorial Day, Labor Day, and Veterans Day. And don’t forget to include the summer. Some parents do use a different schedule during the summer.
Can child support increase if a parent does not see the child as provided in the Parenting Plan?
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Often one side in a time sharing dispute will exaggerate the amount of time they intend to spend with the child in order to secure a lower child support obligation. If a parent does not exercise the time sharing provided in a court order, and that amount of time sharing resulted in a reduced child support obligation, then the parent receiving the child support can use this situation to go back to court and have the child support obligation increased based on the time the other parent actually sees the child.
Do I still have to pay child support if I have 50/50 time sharing or joint custody with my child?
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The determination of a child support amount is made according to the Florida Child Support Guidelines. It is possible that the guidelines will show that some child support should be paid even when the parents have equal time with the child. Typically, zero child support only happens when the parents make about the same monthly income. The guidelines will not show zero, but the judge is not going to require one parent to pay the other parent $15 or $20 per month. Also, the child support guidelines require that day care expense and the child's medical insurance factor into the calculation. If a parent pays these costs and earns more than the other parent, they might get a child support amount close to $0 when there is 50/50 time sharing.
In Florida, at what age does child support end or terminate?
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In Florida, child support does not necessarily end at age 18. The Florida Statutes require that child support be paid after a child turns 18 if that child is still in high school and is working toward graduation prior to turning 19. A few examples to illustrate the rule. If your child drops out of high school, the child support obligation ends when they turn 18. If a child's 18th birthday is in February and they graduate a few months later in June, then child support would end in June when they graduate. Based on the wording of the statute, child support should end on the child's 18th birthday even if the child is in school, but will turn 19 prior to graduating. However, the Supreme Court in Florida has not strictly followed this statute. There is case law that requires child support to continue after age 18 and until graduation when the child turn 19 close to - but after - the date of graduation. Unfortunately, the Supreme Court of Florida did not give any guidance on the precise definition of "close."
My child is 18 still in high school and living at home. Can I still get child support in Florida?
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Yes. The Florida Statutes require that child support continue past the age of 18, but not past 19 so long as the child is in high school and will graduate before 19. This situation typically arises when a child turns 18 while a senior in high school. In that situation, the child support continues until they graduate from high school. However, in order for the child support to continue, they must be in school and on track to graduate before they turn 19. Although the statute is pretty clear that the child must graduate before age 19, there have been cases in Florida where the court has required child support to continue after age 19 because the child's 19th birthday were close together. Unfortunately, the courts have not decided how close the birthday needs to be to the date of graduation in order for the child support to continue.
My ex has remarried and has another family to support. How does this affect child support in Florida?
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The facts that your ex has a new family with younger children will not allow your ex to lower the child support. Any reduction in child support would have to be based on a reduction in income or some of the other factors that are used in a child support calculation such as medical insurance or day care expense. However, your ex's new family might limit your ability to have the child support increased in the future. Under currently existing Florida case law, the ex's obligation to support the new, younger children might limit your ability to have the prior child support obligation increased. The child support might still be increased, just not as much as suggested by the Florida Child support Guidelines. If your ex is trying to limit the amount of an increase in child support, the income of your ex's new spouse can come into play. For example, if the new spouse is making a lot of money, your ex can probably afford the increase you are seeking. In a situation like this, the judge has a good deal of discretion to do what they think is fair under the circumstances.
Can I sign away my rights to my child so I won’t have to pay child support in Florida?
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Typically, you are not allowed to waive your rights to your child and avoid paying child support. Judges decide most issues regarding children by considering what is in their best interest. It is not in a child's best interest to have a parent that does not have an ongoing obligation to support them. A child has a right to be supported by its parents, so a court will not allow you to defeat that right by signing a piece of paper. Of course, there is an exception to this rule. The courts will allow you to waive your rights to your child - and escape further child support - as part of an adoption case. This usually comes up where a mother wants her husband to adopt the child and asks the biological father to sign away his rights.
In Florida, who pays for my child’s day care?
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Normally, day care expense is a component of the child support calculation. Stereotypically, the mothers pay the day care, and the father's child support goes up as a result. For example, suppose that a mother pays $600 per month for a child's day care expense. Also suppose that she makes 60% fo the combined income of her and the father. Under the child support guidelines, she is only responsible for 60% of the cost of the day care. Her percentage of the day care is the same as her percentage of income. She she pays 100% of the day care, the father owes her 40% of the cost of the day care. The father pays his 40% of day care as an increase to his child support. If the father were paying for the day care, his child support would go down by 60% of the cost of the day care. It is important to remember that in most cases, when the day care expense ends, the child support amount should be modified to reflect that change.
What happens in Florida when a child turns 18 and there is still a child support arrearage?
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You should continue paying the same child support amount after your child turns 18 if you owe child support arrears. After a child turns 18 and child support would normally end, all the money you pay as child support goes to pay off the arrears since no new monthly amount is owed. for example, say you are paying $500 for child support and an additional $50 per month for child support arrears. Your total payment is $550 per month. If you pay this amount in the month of the child's 18tn birthday, only $50 goes to pay down the arrearage. The following month, you should still pay $550, but that entire amount goes to pay down the arrearage. Of course, this will reduce the arrears much quicker. It is important to know the total amount of your arrears in order to avoid over payment. When the entire payment foes toward the arrearage, it is possible in some cases, to ask the court to lower the payment.
My ex is not paying child support. In Florida can I withhold time sharing / visitation?
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The short and easy answer is "No." You should not withhold time sharing because the other parent is not paying child support. It doesn't matter if the child support is court ordered or not. Withholding time sharing because the other parent is not paying child support is specifically prohibited by the Florida Statutes and is looked on unfavorably by judges. The judges are usually of the opinion that the child benefits from a good relationship with both parents. If the other parent is not paying child support, you should look into filing a Motion for Contempt.
Can child support be modified up or down in Florida?
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The short answer is yes it can be modified, but there are a few rules. In order for the child support to be modified either up or down, you have to be able to show that the child support would be modified by $50 or 15% – whichever of those amounts is greater. So, a few examples. Suppose the child support amount is $200. Based on those rules, the child support amount cannot be increased at all unless it increases to $250 or higher or it cannot be decreased at all unless it goes down to $150 or lower. That is the $50 rule. An example of the 15% rule would be if you have a $1000 child support, it’s not going to go up at all unless you are at $1150 and it’s not going to go down at all unless you are at $850 or lower. All child support calculations, from the first time a child support amount is established to the last time it is modified, are done according to the Florida Child Support Guidelines.
Can I pay child support directly to the other parent?
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Yes, in some circumstances, you are allowed to pay child support directly to the other parent. However, you should read the order that establishes or modifies your child support to see how the judge ordered you to pay. In Department of Revenue child support cases, the child support is ordered to be paid through the State Disbursement Unit in Tallahassee. In some divorce and paternity cases, you may also be required to make child support payments through the State Disbursement Unit rather than make direct payments to the other parent. If you were ordered to pay thought the State Disbursement Unit and you pay the child support directly to the other parent, then the State Disbursement Unit will assume that you did not pay and you will start accruing an arrearage in their system. This can be corrected, but it can take a while and cost you unnecessary attorney fees. Child support should always be paid as directed in your court order.