I am often confronted with questions regarding how child support is established; how it is enforced; and how a prior child support order is modified to increase or decrease the amount. Let's first start by saying that both parents have a legal duty of support for their minor child(ren).
Establishing Child Support is like baking a cake. What?! Different ingredients are used to bake a cake such as egg, flour, milk and sugar. Same thing goes for establishing child support: (1) The child(ren)'s basic necessities such as rent, utilities, food, gas for the car to get the food and similiar items; (2) health insurance coverage, if available, and any uncovered expenses such co-pays and prescriptions; (3) day and/ or aftercare if same is necessary because of work or an educational pursuit; and, (4) any specialized need(s) of the child such as chronic health or emotional issues. The parents' respective incomes are relevant in establishing their child support obligations.
How do we establish the parent's contribution towards the basic necessities of the child(ren). Let's say a Parent (A) is earning a net income (after tax) in the monthly amount of $ 2,250.00; and Parent (B) is earning $ 4,500.00 (net) for a combined avaiable income of $ 6.750.00 per month. If A and B have two children together who are still minors and dependent, then Florida's child support guideline calls for a contribution by both parents of $ 1,856.00 per month. A's share is calculated by dividing $ 2,250 of the total $ 6,750, or 33.33% ($ 618.60); and B's share is then 66.67% ($ 1,237.40). The guidelines are found under Chapter 61, Florida Statutes (section 61.30(6), FS). If B is covering the children under his health insurance policy, then his child support obligation is reduced by the Mother's share of the premiums. If the coverage for the family/ children is $ 100 per month, then A would owe $ 33.33 to B, which would simply reduce B's obligation by that amount. The same rationale applies to day/ after care. Each parent contributes his/ her guideline percentage towards such expense(s).
Florida law also provides that the amount of time sharing (what we used to call custody/ visitation) may impact the calculation of a parent's support obligation. In the above example, if B is receiving more than 20% time sharing (for example, 3 overnights per 2 weeks), then B's support obligation of $ 1,237.40 may be reduced. The criteria used to determine time sharing is a separate matter from child support but the amount of time sharing may impact the establishment of one's child support obligation.
If a parent is "voluntarily" under- or unemployed, then the Court may impute a level of income to that parent. In so doing, the Court will evaluate the "potential and probable earnings level of the parent ... based on his or her recent work history, occupational qualifications, and prevailing earnings level in the community" (section 61.30(1)(b), FS). This is not as simple as it sounds. Let's say Parent B lost his job and now embarks on a business venture in which he has negative gross receipts at this time, so B says. Let's also add that B has many job skills which make him both marketable and employable in the local community but B claims he cannot find work making what he earned at his former job and his business venture needs just a little more time. What can A do, if anything? Does B have a legitimate argument? The answers to both questions truly are dependent on the particulars of each case. If B has not diligently and in good faith pursued employment, then the Court may not buy into his venture, no pun intended. If B diligently pursued a search for comparable work but was only able to find stable employment within a range of $ 32,000 to $ 35,000 but chose not to take that job, the Court may then impute $ 35,000 to B for purposes of calculating his child support obligation.
Enforcement of child support is always critical especially when bills and other necessities keep piling up. Using the example above, if B lost his job and stops paying court ordered child support, then A may enforce the court order by filing a Motion for Contempt. At such a hearing, the Court will need to first determine if B is in willful contempt of court; and, if so, set a "purge" amount. Did B have an ability to comply with the court order but knowingly fail to do so? If B is receiving unemployment compensation and further has a savings and perhaps a baseball card collection from when he was a kid, the Court might find B in willful contempt if B paid nothing towards support since becoming unemployed. However, if B sold his baseball card collection and contributed only 1/2 of his child support, he may be technically in contempt but same may not be "willful". Of course, if the court orders you to do something, you are legally obligated to do so and no attorney should advise otherwise. If B is in willful contempt, the Court cannot simply order the amount owed (arreage) to be immediately paid. The Court needs to make specific findings as to B's ability to pay a "purge" amount. If B has only paid $ 500 towards his last three months of child support and now owes $ 3,212.00 yet B has a baseball card collection worth $ 5,000 and/ or a savings of $ 10,000, then the Court may order B to immediately pay the amount owed or face immediate incarceration.
Child support can also be increased or decreased after an initial court order. This is called "modification". In order to modified (up or down), one must allege and prove a substantial change in circumstance since the last order of support. Let's say, one year after child support was ordered, B buys a new BMW because he was promoted. He now earns 25% more than he was at the time of the order. If the increased earnings is permanent in nature and materially impacts the amount of child support to be paid, which I would suggest is the case, then A may seek an upward modification. Using the example above, if B lost his job and has performed a diligent search to find other employment but cannot, B is duty bound to file a request for a downward modification. B will need to understand that any downward modification is only retroactive to the date B files his/ her request for a modification. If B fails to do so, then B's child support obligation will continue to accrue subjecting him/ her to a finding of contempt. Proving a substantial change in circumstance can be difficult and sometimes very emotional. For example, B may have been with his former job for over 20 years and then let go due to economic reasons or downsizing. What if B has remarried and B's new spouse is financially secure. Can A seek information on B's spouse's income or whether the spouse is supporting B? Is this relevant? Again, the answers to these questions depends on the particular of each situation. Florida case law is replete with court rulings on these matters.
DISCLAIMER: the foregoing is not intended as legal advice or a representation as to a position or outcome. If you have any legal questions and/ or are in need of representation, then please feel free to give me a call for a free initial consultation at 727/ 895-5858. The emphasis of my law practice is on family/ divorce law, which includes all child-related aspects such as parenting plans/ time sharing and child support matters.