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Child Support is derived from the common law principal that a parent should provide for the necessities of their child or children. The purpose behind the obligation to pay child support is to ensure that children are properly cared for and their basic needs are met. In Florida, both parents are responsible for supporting their children regardless of whether the child resides with that parent or not.
In making an overall determination of child support sections 61.30 and 61.13, Florida Statutes, must be reviewed together. The Florida Child Support Guidelines are found in Section 61.30, Florida Statutes. While other child support issues, including, but not limited to health insurance for the minor children, termination of child support, and requirements for the child support orders are found section 61.13 of the Florida Statutes.
Establishment of Child Support in Florida
Florida’s child support guidelines are a starting point to determine the proper child support calculation. Calculating the amount of child support depends upon a number of factors including the parents’ relative net incomes, the number of overnights spent with the children, the cost of health insurance, and the cost of daycare.
Further reading: Child Custody & Timesharing in Florida
However, there are many reasons for an upward or downward deviation of the child support guidelines. Several expenses of the children are typically included in the calculation of child support such as health insurance and day care. Other childcare expenses such as after-school care, private school costs, the cost of summer camps, and extracurricular activities are not included in the child support calculation and will need to be addressed in the parenting plan.
Timesharing has the most substantial impact on the calculation of child support. If either parent is deemed to be the custodial parent and the other parent has less than 20 percent of overnights (less than 73 overnights per year), the court will follow the basic calculation in determining the amount of child support the non-custodial parent will pay the custodial parent. In other words, the court calculates the child support based only on income and does not consider the non-custodial parent’s overnights unless they have more than 73 over nights per year. This is done because the courts presume that the custodial parent is incurring the majority of the costs in raising the children. In the alternative, if the non-custodial parent exercises more than 20% of overnights per year (or more than 73 overnights), then the calculation factors both the income of the parties and the number of overnights.
To arrive at a correct calculation, there must be an understanding of what constitutes income, what deductions are allowable when arriving at a net income, how insurance costs and daycare expenses factor in, and how other issues affect the calculation.
Modification of Child Support in Florida
Pursuant to section 61.13, Florida Statutes, child support may be modified, either increased or decreased, when:
- The court finds the modification to be in the best interests of the child;
- The child reaches majority; or
- There is a substantial change in circumstances of the parties.
In order to obtain a modification based on a change in circumstances, the change in circumstances must be significant, material, involuntary, and permanent in nature. These requirements have been developed in part to ensure that the duty to furnish adequate support is not deliberately avoided. Examples include, but are not limited to, loss of employment, termination of child’s attendance at daycare, disability of a parent, increase in costs of health insurance or daycare, or a substantial increase or decreased (15% or greater) in either parent’s income. The party requesting the modification has the burden of showing that there has been a substantial change in circumstances. When the amount of child support is based upon an agreement between the parties, a heavier burden rests upon the party seeking a modification than would otherwise be required.
Courts will impute income to an unemployed or underemployed parent when such unemployment or underemployment is found to be voluntary, absent physical or mental incapacity or other circumstances, which the parent has no control.
Child Support Arrearages and Enforcement in Florida
There are a number of different methods that can be used to for child support enforcement, including but not limited to contempt, garnishment of wages and/or salary of the obligor, suspension of obligor’s driver’s license, placement of a lien on the obligor’s property, and denial or suspension of certain professional licenses or certificates. The Department of Revenue has additional methods for enforcement and collection of child support, including, but not limited to, seizure of Federal Income Tax Refund, seizure of unemployment compensation benefits, collection of Florida Lottery prize winnings, and suspension of the obligor’s passport.
On an initial action for child support, under section 61.30(17), Florida Statutes, retroactive child support is limited to 2 years back from the date of filing the petition for support.
Can I waive child support or can the other party waive receipt of child support?
No, the obligation to pay child support cannot be waived. However, child support can be determined at mediation rather than by a trial court. Courts will sometimes allow a parent to waive retroactive child support or child support arrears. However, a party cannot waive all arrears when the Department of Revenue is a party and public assistance monies have been paid. Additionally, a party’s delay in seeking enforcement of child support does not constitute a waiver.
Why isn’t the child support I pay considered income to the parent who receives it?
Under the law in Florida, child support is the right of the child. The parent receiving the child support is considered to be acting as a trustee. Child support is intended for the support of the minor children and is therefore not income.
What if the child support isn’t being used to support the minor child?
Unless there is evidence that the child’s needs are not being met as a result of mismanagement of child, the requirement to pay child support does not stop. Additionally, Florida law does not require the parent receiving child support to account for how child support is being spent.
Can a parent who has been ordered to pay child support quit his or her job or take a job that pays less to avoid their obligation?
Unfortunately, some parents attempt to avoid their child support obligation by voluntarily terminating their employment or deliberately taking a job that pays less than they would ordinarily earn. Florida courts oppose this kind of behavior and will impute income to that parent if they find that they have the ability to work or earn a higher wage. If it is found that either parent is voluntarily underemployed or unemployed, the court may impute income based upon prior work history, education, and experience. In general, the court will evaluate the parent’s overall earning potential in determining whether it is appropriate to impute income. However, there are some exceptions to this rule when it is determined that a parent needs to stay home with a child under certain circumstances.
If the other parent hasn’t paid their child support obligation, can I tell them they can’t see the child or keep them from seeing the child?
No, it is not legal to withhold visitation because either parent fails to pay court ordered child support.
If the other parent chooses not to or does not exercise their time-sharing, can I request an increase in child support since the other parent is not exercising their time-sharing?
Yes, failure to regularly exercise court-ordered or agreed timesharing schedule, which is not caused by the other parent is a substantial change of circumstances for purposes of modifying child support. A modification is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed timesharing scheduling.
I would like to go back to school. Can my child support payments be reduced while I attend school?
The answer is maybe. Trial courts evaluate whether a temporary reduction in child support payments due to a payor’s pursuit of an enhanced education will eventually be legally beneficial to the recipients on a case-by-case basis. There is no bright-line rule to be applied in cases where a parent is seeking a reduction in child support to enhance their education.
If the child will reach the age of majority while you are still completing your degree or soon after earn your degree, it is unlikely that the court will find it is in the best interests of the child to reduce child support. Because the legal duty of the parent required to pay child support will terminate before the degree is attained or shortly after the degree is attained, a reduction in child support will not act to ensure the present and future economic well-being of the child.
What are the types of licenses or certificates that can be suspended if I don’t pay my child support obligation?
Some types of licenses or certificates that may be suspended pursuant to Chapters 409, 455, 456, 559, and 1012, Florida Statutes, and section 61.13015(1), Florida Statutes:
• Family foster homes;
• Child placing agencies;
• Certified public accountants;
• Real estate;
• Teaching;
• Physicians, including Osteopathic Doctors;
• Nursing;
• Pharmacist;
• Collection agents
My driver’s license has been suspended for nonpayment of child support. What do I do?
Within 20 days after the date the notice of delinquency and intent to suspend your driver’s license is mailed, you must pay any applicable delinquency fees AND you can (1) pay the delinquency in full and any other costs and fees between the date of the notice and the date the delinquency is paid; (2) enter into a written agreement for payment with the oblige or with the Department of Revenue (depending on who brought the action); (3) file a petition with the circuit court to contest the delinquency action; (4) demonstrate that you receive reemployment assistance or unemployment compensation; (5) demonstrate that you are disabled and incapable of self-support or that you receive benefits under the Federal Supplemental Income program or Social Security Disability Insurance program; (6) demonstrate that you receive temporary cash assistance; or (7) demonstrate that you are making payments in accordance with a confirmed bankruptcy plan under chapter 11, chapter 12, or chapter 13 of the United States Bankruptcy Code.
If you do not respond or file a motion within 20 days of the date the notice was mailed, your license will be suspended without further notice to you.
Can I request that the other parent be required to pay for our child’s college expenses or to pay child support until they graduate from college?
In Florida, courts cannot make a parent pay child support beyond the date the child graduates from high school, unless the child is disabled. However, parents can agree to support the child through the child’s graduate from college if they voluntarily desire to do so.
Can a child support order from another state be enforced in Florida?
Yes. Once an order from another state or foreign jurisdiction is registered in Florida, it is enforceable in the same manner and is subject to the same procedures as an order issued by a Florida court.
If you have an issue or questions regarding child support obligations or enforcement, you should contact Dewitt Law Firm for more information.