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.

Establishment

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. 

Modification

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.

The FBI has informed the Florida Department of Law Enforcement that effective April 15, 2012, it will no longer accept fingerprint cards submissions for any domestic adoption. While the FBI will continue to take “hard card” fingerprint submissions for international adoption applicants, all domestic adoption applicants must submit their fingerprints electronically by live scan submission.

While this once meant that applicants needed to go to a local live scan site, or to meet personally with Bob, Ideal Identification is now able to mail prospective adoptive parents a Secure Fingerprint Card Scan Package, including FD-258 fingerprint cards, data input sheets with instructions, and a return envelope. So no matter where in the country prospective adoptive parents reside, if they are working on a Florida adoption, Ideal Identification can help them complete their criminal background screenings.

For more information, call our firm or call Bob directly toll-free at 866-288-6543. P.S. Bob is a great guy. If you meet him, ask him how he knows the famous animal activist Jack Hannah! It’s a great story.

The law regarding alimony in Florida has changed in a number of ways since 2010.

These changes include codification of the types of alimony that may be awarded, codification of what defines a long term, short term, and moderate term marriage, and changes to the factors the court must consider in deciding whether to award alimony and what type of alimony should be awarded.

Prior to January 1, 2011, there were a number of types of alimony which were established and defined by case law.  However the types of alimony that could be awarded were not defined or specified by Florida Statutes and therefore the definitions and types varied in different districts of Florida.  Permanent Periodic Alimony and Rehabilitative alimony were recognized in all Florida districts.  However, Bridge-the-Gap Alimony was not recognized in all Florida districts.  This changed on January 1, 2011 when the legislature’s amendments to Florida Statute 61.08 became effective.  The statute now specifically defines Rehabilitative Alimony, Permanent Periodic Alimony and Bridge-the-Gap alimony.  In addition, the legislature created a new type of alimony, Durational alimony.  These types of alimony are defined as follows:

Bridge-the-Gap alimony is intended to assist a spouse with specific, identifiable short term needs, and to assist with the transition from married life to single life.  An award of Bridge-the-Gap alimony may not exceed 2 years in duration.

Rehabilitative alimony is intended to assist a party in obtaining the capacity for self support through education, training, work experience, or updating outdated skills.  It requires the development of a specific plan, such as schooling for two years to obtain a nursing certificate. 

Durational alimony is intended to provide a party with financial assistance after the termination of a short term or moderate term marriage where permanent alimony is not appropriate.

Permanent is intended to provide a spouse with the needs and necessities of life as determined by the standard of living enjoyed during a long term marriage.   Permanent alimony can also be awarded in a short term marriage if the court finds that there are exceptional circumstances.   The statute regarding  permanent alimony has recently changed again on July 1, 2011 such that there is no longer a presumption in favor of permanent alimony in a long term marriage.

Historically, what type of alimony a person is entitled to has been based, in part, on whether the marriage was considered to be a long term marriage, moderate term marriage or short term marriage.  However, prior to January 1, 2011, what qualified as a long term, short term, or moderate term marriage was not defined in Florida’s statutes and therefore, court decisions differed in different areas of Florida. However, the length of a marriage (measured from the date of the marriage to the date of filing for divorce) is now defined by statute as follows:

Long term: 17 years or more

Moderate term: 7years up to  to 17 years

Short Term: less than 7 years

In addition, effective July 1, 2011, the legislature has added several new statutory factors that must be considered by the court in awarding alimony.  Some of these factors were previously addressed by case law but not codified until now.  These new factors are:

1.            The responsibilities each party will have with regard to any minor children they have in common.

2.            The tax treatment to both parties of any alimony award, including the designation of all or a portion of the payment as nontaxable, nondeductible payment.

3.            The earning capacities, educational levels, vocational skills, and employability of the parties.

4.            All sources of income available to either party, including income available to either party through investments of any asset held by that party.

These new changes to the alimony statute cannot be the sole basis for bringing a case to modify alimony.  However, if an independent basis exists for modification, then the new rules and definitions apply.  If you would like more information about your rights in an alimony case, please feel free to call our office and schedule an appointment with one of our attorneys to discuss how these changes in the law might effect your unique situation.

Not long ago we adopted a little girl. As first time parents, we are both a bit surprised by how quickly she became the center of our world.

Our adoption experience was a story in itself, but space does not suffice to tell it here. There were bitter disappointments along the way, but in the end great joy.

If it is in your heart to adopt a child, you will hear a great deal of advice. Those that have been through the process will tell you that the experience is like a roller coaster ride and that it can be very trying. They will also tell you that it will be the most rewarding thing you have ever done.

Those of you that are parents will know this, but for you first-timers here is one thing that served us well:  Make the best decisions that you are able, but know that there are a lot of strong emotions, feelings, people and events that are simply beyond your control.

Faith was probably a large part of what brought you to this point. Let faith take you the rest of the way.

A big lesson we took from our experience becoming adoptive parents was that you will need a lot of help from an effective third party. One can only imagine how difficult is it is to manage the emotions and needs of the birth mother as well as those of the adoptive parents; but Mary and her staff at Brandon Family Law Center succeeded in doing just that. Alyce and Mary were there for us on every step of the way.

When all the dust settles and the baby is finally yours; sneak a look at Mary and you will see her smile. She really does have a heart for this, and it is a good thing to have someone like that on your side.

This ruling applies throughout the State of Florida, and means that any qualified individual or couple can apply to adopt a child in Florida, regardless of their sexual orientation.  Same-sex couples can seek to adopt in what is known as a two-parent adoption, and the partners of gay or lesbian parents can apply for a second parent adoption, to get legal recognition of their role in parenting.

Are you gay, lesbian, or bisexual and thinking of adopting a child?  Contact Adoption Attorney Mary L. Greenwood for more information.

Linked articles:

http://www.aclufl.org/adoption/gill.cfm

http://www.nytimes.com/2011/06/14/us/14adoption.html?hp

My desire was to have a family; my dream was a big family, husband and 3 or 4 children. But little did I know that would not be my life. Looking back I see purpose for my singleness in being a co-caregiver for my mother, my mentor, I was able to help care for and be there for her as she had stood beside me. I almost wish that I had started this process before her passing because she would have been a really good Grandmother.

However, after her passing, my sight was back on my life and where I was headed, and once again my desire for a family was stronger than ever and back on my heart.  As I began to pray for this asking God what this could look like, I started searching various avenues and adoption became my focus.

Medicaid Public Hearing

Thursday, June 16^th at 9:00a.m.

Hillsborough County, AHCA Region 6 Public Hearing

As a result of the legislation passed this 2011 Legislative Session

(HB 7107 and HB 7109) Florida’s Medicaid Reform movement is now at the stage where Florida must ask the federal government to approve its plan to expand managed care enrollment to all Medicaid recipients statewide.  Once implemented, beginning July 2012, this mandatory enrollment will require current, as well as future, Medicaid recipients – the poor, the uninsured, the sick, and the

elderly– to sign up under a managed care plan. The movement toward a managed care approach is based solely upon a 5-year, 5-county pilot project which did not even include coverage for an elderly population.

Agency for Health Care Administration (AHCA) has just released notices regarding the public hearings required to be held around the State of Florida where the public may attend and offer comment.  These comments are required to be transmitted to the Center for Medicare and Medicaid Services (CMS). CMS will then consider whether to grant the plan, known as a waiver, permission to expand statewide.

AHCA will make a presentation and then allow for public testimony.

Florida Department of Transportation Auditorium

11201 N. McKinley Dr.

Tampa, FL 33612