An Overview of Child Support in Florida
Divorce proceedings are often complex when the couple has children. Some of the most contentious areas to settle are parenting-time, medical decisions, and choice of schools. There is also a key financial aspect to consider in such proceedings- that of child support. In Florida, the issue of child support is taken very seriously and this is one of the rare aspects of divorce proceedings that can actually migrate into criminal law. That means if one of the parents fails to abide by the court’s order regarding child support, he or she is committing a criminal offense, which can result in a jail term. Although the law provides a clear structure to follow in determining child support payments, there are several ways in which complications can arise with these cases. In such situations, it helps to have a clear understanding of the objective of the court in determining child support.
The Objective of Awarding Child Support
The primary objective of granting child support is to ensure that any child of the divorcing couple receives financial support from his or her parents. This parental financial support is a right of the child under Florida law. The money received through child support enables the fulfillment of the child’s basic needs such as food, shelter and clothing. However, that is not the only important concept. Florida law believes that the child has a right to enjoy the wealth of his/ her parents and child support payments are determined keeping this in mind.
Under Florida law, the court makes some basic presumptions when determining child support.
- Both parents are required to pay child support and it is the legal duty of both to ensure that the payments are being made on a consistent basis in line with the court’s orders
- The child support is not a payment made for the other parent and it cannot be used by for any personal purpose. This money belongs to the children and it should be used only for them. But if that parent provides food, clothing, housing, and other necessities, it is assumed that parent is properly using their support payment.
Formula for Determining Child Support
To make the complex process of determining child support simpler, there is a formula for calculation of how much child support is reasonable. This formula is laid out in the Child Support Guidelines. There are several key aspects taken into consideration in this formula, including:
- The net income of both parents
- The number of children who will be supported with these payments
- The question of which parent has legal custody, or the equivalent of legal custody of the children
- Financial needs of the children including day care expenses, medical/ dental expenses, insurance costs
- The number of overnight stays that each parent has with the children
The overnight stay aspect is especially important and it is also a complex calculation that can significantly impact the child support payments. The general premise is this: the parent who takes responsibility of the children for the majority of the time also undertakes various expenses related to the children. To bring about a balance in the actual expenses undertaken by both parents with respect to children, the other parent is expected to transfer money to the other parent in the form of a child support payment.
In earlier years, the court designated one parent as the ‘primary residential parent’ or the custodian and this was the parent with whom the children would be living for a majority of the time. The other parent was deemed the ‘secondary residential parent’ with visitation rights. This has been amended since and parents now have time- sharing rights with their children – rather than “visitation.” We now refer to the parent that has the larger share of time as the “majority parent.”
An alternate formula is used for calculating child support payments when either parent has the children for at least 20% of annual overnights. In those cases, we refer to the situation as “substantial timesharing.” Under the amended law, the parents with ‘substantial timesharing’ will most likely pay less child support than they would if their overnights did not meet the threshold.
Effective January 2011, substantial timesharing was revised to 20% from the 40% threshold that was in place in prior years. Now, the parent who has the children for 20% of overnights or more has ‘substantial’ time-sharing. The time-sharing percentage is viewed in conjunction with the parents’ income and earnings to arrive at a certain child support payment.
Exceptions to the rule: In special circumstances the court may ignore the formula for calculation of child support. Typically, this happens when one parent can establish that he or she cannot pay the regular sum because of a disability or owing to special circumstances. The formula may also be disregarded if the children have special needs.
Child Support Payments for Arrears
The law also provides for payment of child support in arrears. What this means is that at the time of awarding child support, the court may also order that it be paid for the time that has elapsed since the separation of the parents. When the parties separated more than 24 months before the child support action was filed then the court may determine that support must be paid for the entire 24 month period.
Modification of Child Support
It is possible to modify child support payments if a ‘substantial, unanticipated, permanent’ change in the circumstances comes about. For example, if one parent loses his or her job, becomes disabled, or takes a pay cut then he or she can request for modification of child support. A petition for modification can be made any time the new calculation shows the change in child support would be at least 15% or $50. To be considered a permanent change, the change probably must have remained in place for at least a year. That is not an absolute requirement – as long as you can prove the change is permanent. If the child no longer needs to be in daycare, if there is an increase in insurance or daycare costs, then a modification in child support can be requested. Another situation is if one parents stops exercising his or her time- sharing with the children. Keep in mind that any change would be effective only back to the date the modification petition was filed.
As stated before, the court can consider a petition for child support modification if the potential modification will result in a change of 15% or $50 in the final support amount. A document called a Supplemental Petition needs to be filed to initiate the modification process. You must disclose detailed financial records to the other parent, and bring supporting proof to court to support your case for or against modification. To determine whether modification should be approved and how much the new support total should be, the judge takes the parents’ present day income into account. Other factors may also be taken into consideration to recalculate the new number for child support.
While modifications may be possible, courts typically do not allow a complete waiver of child support. The premise behind child support payments is that this money is being given for the welfare of the child. The parent receiving the money is only doing so as a representative of the child. It is not up to him or her to waive child support since it is not being paid for his or her benefit. In some cases, where exceptional circumstances are present, the court may waive child support or waive arrears. But this is an outcome you can never count on.
On the other hand, the court cannot ask either parent to pay child support once the child has graduated from high school or turned age 19. Exceptions are made in case the child is severely disabled and/ or the parents have an agreement to this effect. However, in some states the court does order both parents to support their child’s college education. If the parents have been granted their child support orders from a state where this is allowed, then this will be enforced in Florida if the parents now reside here.
Rotating Custody and Child Support
The non- majority parent typically pays the majority parent Child support. However since child support payments are closely linked to the number of overnights that each parents have with the children, there is wiggle room in that concept. The time that the children spend with each parent often undergoes change in the years following the parents’ separation. The way the law looks upon child custody issues has also been changing over the years. Earlier, judges were strongly against Rotating Custody where the children spend equal overnights with both parents. But present day judges are quite open to the idea provided both parents seem sincere about the system and they are committed to it. If the court awards rotating custody, then child support payments made by the parents may be much lower than if one parent enjoys a majority of overnights with the children.
Non-Payment of Child Support
There are several ways in which action can be taken if one parent fails to pay child support. To begin with, the custodial parent can send a late payment notice. If this does not get a response:
- the non- paying parent’s driving license may be suspended
- his or her past- due support may be reported to credit agencies
- liens may be placed on his/ her personal property
- business, professional, or recreational licenses may be suspended
- federal income refunds may be diverted towards child support
- child support may be deducted from his or her paycheck, worker’s compensation or re-employment payments
- child support may be directly debited from his or her bank accounts
- if the non- paying parent has lottery winnings in Florida to the tune of over $600, these may be taken to fulfill child support obligations
Negotiations with the non- paying parents to reinstate child support as well as to collect due payments are also possible under Florida child support law.
Here, it is also important to note that there is no legal system to ensure that the child support payments are being used solely for the child’s benefit. The law does not ask the parents to provide an account of how the money is being used. It is evident that there are several practical difficulties in making such disclosures mandatory. Many expenses that the parent makes may benefit the child indirectly and helps that parent live in the way they is accustomed to. For example, the parent may renovate the home to make it safer for a young child. While the child is not actually deriving a concrete benefit from the expenditure, he or she is the biggest beneficiary of the new, safer home.
Collection of Child Support Payments
Collection and enforcement of child support payments is a huge task but the Florida Department of Revenue manages it through various departments. Child support payments are typically processed through the State, by the State Disbursement/ Depository Unit or SDU. As soon as child support has been finalized and awarded, the Florida SDU establishes an account for the case through which payments will be tracked. Payments go to the SDU and from there a check is issued to the receiving parent.
It is also possible to make child support payments online which makes it very easy for parents residing in outside states to keep track of and make payments in time. Either parent can request a printout of the account’s transactions from the courthouse where the child support was awarded. Otherwise they can simply check the account online to know the recent payments and arrears if any. If either parent raises a complaint about non- payment of child support, it is a simple matter to get a record of transactions in the account and verify if the claim is justified.