By Karen A. Howe, Esq.
In Florida, both parents are legally obligated to provide support for their minor child or children and receipt of child support is considered a right of the child not the parents. The purpose of child support is to ensure that the child's basic needs for food, clothing and shelter are met and, additionally, to allow the child to share in the wealth and good fortune of the parent's.
Child support is established based upon a formula, which takes into account the net income of both parents, and certain specified expenses including but not limited to the health insurance premiums being paid for both the parents and the children, and the daycare costs, if any, for the child or children. In addition, the formula also takes into consideration the number of over-nights the child or children spend with each parent. If the parent with less time has at least 73 overnights each year, then the amount of time-sharing will be included in the calculation of child support and will force an adjustment to the child support obligation. This reduction in child support is based upon the consideration that both parents will need to provide food, clothing and shelter for the child or children while they are in that parent's care.
At the time when child support is initially established, retroactive support may be established for the time period between the date the parents separated and the date that the child support order goes into effect. Or, if the parties separated more than twenty-four months prior to the filing of the action requesting child support, retroactive support may be established for a period starting twenty-four months prior to the date of filing through the date the child support obligation becomes effective.
Child support can be modified at any time based upon a showing of a substantial, permanent and unanticipated change in circumstances. What constitutes a substantial change in circumstances includes but is not limited to, the loss of a job, the termination of the child's attendance at daycare, the disability of a parent, an increase in the costs of health insurance or daycare, or a substantial increase or decrease (15% or greater) in either parent's income. Further, a permanent change is one that has lasted or is anticipated to last for one year or more.
Generally, a modification can only be effective as of the date of filing of the action for modification. Therefore, any arrears that accrued due to non-payment of child support after the loss of a job but before the modification action was filed will remain due and owing. However, there is one exception to the general rule that child support cannot be modified retroactively. If child support was established based upon both parents exercising substantial time-sharing with the minor child or children and one parent stops exercising that time sharing, child support may be modified retroactively to the date when that parent stopped exercising his or her time-sharing.
Arrears and enforcement
There are a number of enforcement mechanisms for child support orders including contempt of court, suspension of the obligor's driver's license, and the placement of a lien on the obligor's property. The Florida Department of Revenue and it's sister agencies in other states have additional enforcement mechanisms including suspension of the obligor's passport, and seizure of the obligor's bank account.
In addition, the Clerk of Court will enter a judgment by operation of law on arrears that have accrued when child support is payable through the State Disbursement Unit and the Clerk of Court. Once such a judgment is entered, interest begins to accrue. Therefore it is best to make child support payments in a timely manner whenever possible.
Further, there is no statute of limitations on the enforcement of child support and child support arrears. Therefore, child support can be enforced after the children emancipate, and even against the estate of the obligor after the death of the obligor.
The one exception to the rule that child support arrears can be enforced at any time arises when the obligor can prove laches or equitable estoppel. This means that the obligor must show that he or she had a reasonable belief that the other parent would not seek to enforce the child support arrears and that the obligor parent would be harmed should the other parent enforce the arrears. This can frequently be proven where the parents entered into an oral agreement reducing the obligor parent's child support obligation or exchanging items such as a vehicle or payment of certain expenses for the child in lieu of payment of child support.
Frequently Asked Questions
1. What about my other bills such as my mortgage and car payment? Doesn't the court take those into consideration?
The statutory formula used for establishing child support, and the Courts do not generally take into consideration the parent's bills in calculating the amount of child support to be paid. Rather, law considers the child's needs to be paramount. However, where child support will result in the obligor parent living at a subsistence or poverty level, the Court may grant a deviation from the guidelines.
2. How do I know that the other parent is actually spending the money I pay for child support for the benefit of the child?
The law does not require the parents to account for how child support is being used, or that it be used only for the benefit of the child for whom it is intended. This makes sense when you consider the theory behind requiring it. Child support is intended so that the child can live a lifestyle that matches the wealth of both parents, and their collective ability to support their child(ren). A child should not have a rich life in one household, and be impoverished in the other. This type of inconsistency would likely be stressful and create ongoing family strife. The child needs and is entitled to good food, adequate shelter, necessary clothing, and safe transportation, at all times, in both households of both parents.
3. The children have been residing primarily in my household for some-time. Do I still owe the other parent child support?
If circumstances have changed enough since the time the child support order was first entered, you may be entitled to stop paying child support. In fact, the other parent might now owe you support. You will need to file a modification action to change both the time sharing schedule for the child or children and to modify or suspend the child support obligation.
If an action to modify child support was not filed immediately when the child began residing with you, and the underlying child support obligation was not based upon substantial time sharing, then any arrears that have accrued will likely remain due and owing.
4. Can I waive child support or can the other party waive receipt of child support?
Generally, the law does not allow either parent to waive ongoing child support as child support is considered to be a right of the child and the parent receiving the child support is considered to be acting in the capacity of a trustee. However, the Court's will sometimes allow a parent to waive retroactive child support or child support arrears. Courts will sometimes make exceptions to this rule, for good cause shown.
5. My passport has been suspended due to child support arrears but I need it for work. What do I do?
Your passport may be suspended if you owe an arrearage in child support in an amount of $2,500 or more. The circuit court cannot order that your passport be returned to you. However, if the arrears being enforced are incorrect, or if you have made payments that are not properly accounted for such that, once corrected, your arrears would be less than $2,500, then you should file a motion to correct the arrears amount and/or obtain credit for the payments made.
6.My driver's license has been suspended due to non-payment of child support. What do I do?
You can file a Motion to Contest Driver's License Suspension and request that your driver's license not be suspended or, that the suspension action be stopped. Generally, the Court will not suspend your driver's license without giving you the ability to pay a purge amount to stop the suspension.
If you driver's license has not yet been suspended but you have received a notice of intent to suspend your driver's license, you have twenty days to file a motion to contest the suspension action in order to keep your license from being suspended. If you do not file the motion within 20 days of the date of the notice, your license will be suspended without further notice to you.
7. The parent who is supposed to pay child support is refusing to work so that they can avoid paying child support. Can he or she do that?
A parent obligated to pay child support cannot refuse to work without consequences. Further, if a parent requests a decrease in child support while unemployed and not seeking employment, income may be imputed to that parent. However, if a parent is diligently looking for work and simply cannot find it, then it would be appropriate for that parent to file a modification action and seek a reduction of child support.
8.Why is the Florida Department of Revenue suing me on behalf of the other parent to obtain child support?
Pursuant to both Florida and Federal law, the Florida Department of revenue will pursue child support any time a parent with whom the child or children reside is receiving public assistance, or, upon the request of a parent with whom the child or children reside.
9. My child or children reside with me fifty percent of the time. Will I still have to pay child support?
If one parent earns significantly more than the other parent, child support may still be ordered even though each parent has time-sharing with the child or children at least fifty-percent of the time.
10. Can I request that the other parent be required to pay for the child's college expenses or to pay child support until the child graduates from college?
In Florida, the Courts cannot require a parent to pay child support beyond the date the child graduates high school unless the child is severely disabled. However, the parents can agree to support the child through the child's graduation from college. In some other states, the law does permit a court order of child support through college graduation. If you have a court order from one of these state, a Florida court will give that order full faith and credit and will enforce it.