Child support in Florida is governed by statute. Our statutory law says that a court can order a party or a parent to pay child support at any time in accordance with the child support guidelines. Child support continues until a child’s 18th birthday, or the parties agree otherwise.
The court can choose to order child support for a dependent person beyond the age of 18 because of a mental or physical incapacity that began before the person reached the age of 18. The court can also order child support for a person between the ages of 18 and 19 who is still in high school, performing in good faith, with a reasonable expectation of graduation before age 19.
It is a very strong public policy in Florida to require a parent to provide support for a minor child. Florida doesn’t look at it as money for a mom or dad, but rather as money for the child.
Can’t Waive Support
Thus, child support is a right belonging to the child. That means that in the event of a divorce parents can’t contract away or waive their obligation to pay child support. In Florida, that means an agreement where one parent agrees to leave the child alone in exchange for the other parent not paying support is illegal.
This doesn’t just apply to child support going forward, but also retroactive support. Retroactive support applies to child support obligations that have accumulated and haven’t been paid yet.
Health Insurance and Non-Covered Expenses
Each child support order in Florida must also contain a provision for health insurance for the minor child. If health insurance is reasonable in cost and accessible to the child, and the court will make sure one of the parents is providing it. Of course, this will get factored into the ultimate child support obligation, and the parent paying the health insurance will catch a “break” on the amount of child support he must pay.
The court also addresses the issues of non-covered medical, dental, vision, and prescription medication expenses of the minor child. Usually, this is allocated to each parent on a percentage basis. This can be a 50-50 percentage, where each parent pays them equally, or this can be on a pro rata basis meaning each parent pays a percentage based on the combined income of the parties. In any case, this must be addressed in any child support order.
Now it is not a requirement that each parent pay for all of non-covered medical expenses, just those that are reasonable and necessary.
Usually we don’t put uncovered health insurance and other reasonably necessary medical, dental, vision, and prescription medication expenses in the child support guidelines themselves. That’s because uncovered expenses tend to change month-to-month, and we can’t predict what they will be. A child could go many months without so much as getting a scratch, and then end up in the emergency room three times the next month. That means that one of the parents is ultimately going to pay the initial bill, and the other parent will have to reimburse the parent who fully paid that bill.
To handle this, we will want language in any agreement that spells out exactly when the parent who paid the initial bill will notify the payee parent of the amount paid. We’ll want that first parent to also include a receipt when notifying the parent. Then we want to set up a time frame for when the payee parent is going to pay back his or her reasonable share of the uncovered expense. Ensuring that we set up and specifically spell out the actual terms of how this will transpire will save the parties from much grief down the road.
Can I Get a Credit?
In some cases a party will be entitled to credits in a child support obligation for additional monies that were paid before the order went into effect. So for example, if a father is paying $500 a month to the mother via check for child support even though a child support order hasn’t been issued yet, and then the parents end up with a child support order, it would only be fair for that father to get credit for what he has already paid when determining if and when he had any retroactive support due.
However, be careful: not all money paid to an estranged spouse will be money that will be allocated for child support. So for example, it is common for two parents to separate prior to divorce and one parent to contribute to the household expenses for the other parent. In these cases, the court may conclude that those monies were to help keep up marital assets, like the house, and the intent was not for child support. The court in this case might not give a credit. The best-case scenario is to try to agree from the beginning the purpose behind paying any sort of temporary support to another parent, because details matter in this case.
Florida guidelines have made the actual computation of child support an easy formula if you have the numbers to put into the formula.
This formula requires the following inputs: the income of the parties, minus deductions and exclusions, also adjusted for child care expenses, health expenses, and overnights that the child is with each parent.
Once this information is gathered, we enter them into the machine and crunch the numbers. Really, the hardest part is often figuring out what these inputs are.
Income in Florida means any form of payment to an individual including but not limited to wages, salary, commissions, bonuses, compensation as an independent contractor, workers’ compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments made by a private entity, the federal government, or the local government. Even disability benefits and unemployment compensation are used for the purposes of establishing a child support amount.
Income must come from a legal basis; for example, the court is not allowed to award child support on income someone makes from a career of selling illegal drugs.
When the court uses its discretion to determine gross income it can include and look at:
Deductions and Exclusions
There are various deductions that are allowed by statute that we can take off the gross income. The child support calculations usually do this for us. For example, we can take off:
Once we take the gross income and subtract from it the deductions and exclusions we have the net income ‑ the number that child support is based on.
Adjusting for Child Care and Health Insurance Expenses
We can put child care and health insurance in the child support order, but many times we keep it separate and just have the parties pay their pro rata share. That’s because as mentioned above these numbers tend to change throughout time, and it’s easier to just keep them separate. That way, you don’t have to change the child support number itself every six to 12 months.
Adjusting the Number of Overnights
Finally, the child support formula takes into account the number of overnights. The logic is that if a child is with Mom 100% of the time and not with Dad, then Dad should be paying the highest amount of child support because Mom is the one who is paying for the kids on a day-to-day basis. Conversely, if the child is with Mom 50% of the time and Dad 50% of the time, then the parent who is the breadwinner should be paying less child support than he would otherwise because that parent is also paying for reasonable expenses 50% of the time on day-to-day activities for the child.
In practice, we often have a party who is either not playing along with showing us what their income is, or is voluntarily unemployed or underemployed. The court has the discretion to impute a wage or income to these parents that is fair, so that the child support obligation is not unfair to the other party. In other words, it’s not fair if a mom doesn’t work during a divorce so that she can get a heightened child support amount. Or conversely, if Dad is a dentist and he decides to not go to work for a couple of months it wouldn’t be fair to Mom to reduce his child support obligation.
A Party that Doesn’t Play Along
Sometimes one parent just doesn’t want to play along and/or doesn’t provide financial documentation so that we can figure out what their income is. Consider the parent who is a small business owner, or works as an independent contractor. It’s often not as simple as pulling a W-2 to determine the wage or the fair income according to statute for these parents. So, if one of these parents doesn’t play along and is difficult with providing the documentation needed for the divorce attorney to figure out their true income, we may need to ask the court to just impute a wage based on the median income of full-time workers as derived from the U.S. Census Bureau. We have the ability to do that under a new statute.
An Unemployed or Underemployed Parent
Income can be imputed to an unemployed or underemployed parent when we find that this is happening voluntarily. It would not happen in a case where that parent is physically or mentally incapacitated or involved in other circumstances over which that parent has no control.
We need to have substantial, competent evidence that the parent is underemployed or not employed, and evidence that he or she could earn imputed income.
When imputing income, the court needs to set forth factual findings concerning probable potential earning levels, sources of imputed and actual income, and adjustments to income. One thing the courts pretty much can’t do is impute income based on gifts. The exception is if the gift is regular and recurring. So in some cases, Grandma or Grandpa may be giving a certain amount of money to the parents on a monthly basis. In that case, we can impute income.
So Where Do We Look to Impute Income?
So the first place to start is looking at an unemployed or underemployed parent’s recent work history. The court is allowed to impute a level of income that a parent has previously earned. This can be relevant evidence of probable earning capacity in a similar position.
We can also look at occupational qualifications. Usually this requires expert testimony to establish the earning level for people of a particular profession.
Prevailing earning levels in the community, if available, can be shown through an expert’s testimony; we can also use the U.S. Census Bureau’s numbers to help us figure this out.
When a Parent Stays Home With a Child
While the court is likely to impute income of at least minimum wage to a parent who is unemployed and has the ability to work, the court does have the discretion to refuse to impute income if the court finds that parent needed to stay home with their child or children in order to help raise them. This argument will be much stronger if the children are young and not school age, and much weaker if the children are already in school.
Deviating from the Child Support Guidelines
In some cases the court will want to deviate from the child support number that is crunched by the child support guidelines. This can happen if one party specifically files a motion requesting it and there’s a good faith basis to do so. We would see this in the case of a parent’s share if the child has extraordinary medical, psychological, or dental expenses. So if a child has extraordinary mental health needs and the parent can show that child’s health needs will regularly increase expenses, then in that case we could see the child support number increase.
The court can order private school, but it is a more difficult uphill battle. In order for the court to award child support increases by ordering private school expenses paid, the court must find that the expenses are part of that normal standard of living for the parties, and that attendance at private schools is in the children’s best interest. The court needs to make a written finding of fact on this, and in practice the courts would much rather have the parents agree on private school.
Income Tax Exemption for Dependents
The child support number guideline also changes based on which parents are claiming the dependent care tax credit, earned income tax credit, and the tax exemption for dependents with the IRS. That’s because if you are claiming the child, then your net income is actually going up for a given year since you’ll be paying less taxes. In practice, the tax exemption is usually worth more to the parent who has it, but the other parent can take comfort in knowing that their financial obligation is reduced accordingly.
Be careful: there is a phase-out for the exemption based upon the income of the parties. There are cases where a parent will make so much money that they won’t get any value from the exemption; here it can be a win-win if the parent who makes less money takes both exemptions.
Non-involvement of a Parent
Sometimes we have a child support award and one of the parents just stops seeing the child or is otherwise not involved. A parent’s failure to regularly get involved and take time with the kids can result in the court adjusting the child support number.
Children Born Later
Another common scenario is a parent who has a child support obligation, and then has children later with another person. In general, this isn’t something the courts will consider.
Finally, courts can order life insurance to the extent that it’s necessary to protect an award of child support. The person who’s asking for the life insurance has to do a few things. They have to show the necessity for insurance protection, the cost and availability of insurance, that a premium is reasonable, that the person who would be paying the life insurance can afford it, and any other special circumstances that would necessitate such a security requirement.
In practice, we want to make sure that the provisions for insurance include that the beneficiary designation is revocable, that the payment of premiums shall be made in a timely manner, that the insurance company should inform the awardee if the premium is late or not made and if there is an attempt to change the beneficiary, that annually the obligor shall provide proof that the policy is in full force and effect, that the obligor provide correspondence to the insurance company of the provisions and obligations, and that if the awardee must enforce the provisions, and the obligor will be responsible for the awardee’s fees and costs.