Subsequent Children

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The Florida child support guidelines are designed to discourage a parent from having additional children that he or she cannot afford to support financially.  The Florida child support guidelines are designed to give the most money to the first child.  This award is based on either the first child to file for support or the child born first in time.  Awards to subsequent children will take into account child support awards ordered in another case.  If there is no child support award for the subsequent child, the expenses can be taken into account but cannot be the basis for a reduction in child support.

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For illustrative purposes only I would to use the characters in the Fresh Prince of Bel Air.  Uncle Phil and Aunt Vivian had three children:  Hilary, Carlton, and Ashley.  They also agreed to support and help raise Will who was their nephew.  Towards the end of the show, they also had a fourth child, Little Nicky.  If Uncle Phil found out that Aunt Vivian cheated on him and Nicky is not his son (there are rumors that Geoffrey is the father), and he leaves her and files for divorce.  Uncle Phil would have to pay child support for Ashley (since she was under age 18 when Nicky was born) and Nicky unless Nicky’s biological father came forward to claim him.

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Three years later Uncle Phil marries Jane Doe and has a son, Phil Jr. with Jane.  Uncle Phil cannot use Phil Jr. as a reason to decrease his child support that he pays for Ashley and Nicky.  Years go by and Uncle Phil is appointed to the California Supreme Court with a huge increase in salary.  Aunt Vivian can use his salary increase as a jusitification to increase his child support payments; however, Uncle Phil can use the existence of Phil Jr. as a reason for the court to not increase child support. Ultimately, his expenses for Phil Jr. are considered but are not used as a deduction of his income.  In fact, if Uncle Phil has to take a second job as a tv judge to pay for Phil Jr. to go to Bel Air Prepatory School, the income from the second job MAY be disregarded if Uncle Phil can prove he only got the second job to support Phil Jr.  See Fla. Stat. 61.30(12)(a)-(c).   

If Jane Doe became frustrated that a lot of Uncle Phil’s salary is going toward child support to Aunt Vivian and leaves him, Uncle Phil would be responsible for child support for Ashley, Nicky, and Phil Jr.  In calculating his child support to Jane Doe for Phil Jr., the amount Uncle Phil pays Vivian for Ashley and Nicky would be considered a deduction from his income to reduce his child support obligation.  His child support to Jane Doe for Phil Jr. cannot be used a deduction for his child support to Vivian for Ashley and Nicky.

As you can tell, subsequent children makes matters complicated when it comes to determining what factor they play in calculating child support.  “It would appear that there was a legislative recognition that parties should be aware of their support obligation to existing children, and should take that into account prior to assuming further obligation.” Robinson v. Robinson, 657 So. 2d 958, 960 (Fla. 1st DCA 1995).  As a public policy matter, this was by design to discourage parents from having subsequent children until they first ensured they cared for and provided for the children that already exist.  So for subsequent children, do not rely upon their additional expense to ensure a reduction in the expenses you already have.

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Disestablishing Paternity and Terminating Child Support

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I wrote an earlier post about watching the judge almost order child support payments for a guy who was not the father of the child.  It happens more often than it should that child support payments are ordered for a guy who is not the father of the child.  This often occurs when the alleged father chooses to not participate after being served with court paperwork or he was not available to appear in court during the process when child support was ordered.  This is a way to disestablish paternity to end child support payments that I will discuss below.

The specific requirements to disestablish paternity or terminate child support are stated in Florida Statute 742.18.  First, the male must file a Petition to Disestablish Paternity in the appropriate circuit court having jurisdiction over the case.  The petition must include an affidavit signed by the male stating the newly discovered evidence that exists after the child support was ordered.  Secondly, the male must submit DNA test results or request the mother submit the child for a DNA test.  Third, the male must be current on all child support payments or prove an inability to pay the child support payments that were already ordered.

The newly discovered evidence requirement can be difficult, if not legally impossible to satisfy, if the male voluntarily acknowledged paternity.  When a male knows there is a chance he is not the father of the child and he chooses not to have a DNA test, he can be prevented from challenging the paternity and terminating child support later.  See Hooks v. Quaintance, 71 So. 3d 908 (Fla. 1st DCA 2011).  In Hooks, the Court held that his refusal to test the child before acknowledging paternity meant that the father did not exercise due diligence.  Id.  When the male later found out he was not after a DNA test, the Court held that was not new evidence and denied his petition to disestablish paternity.

In another case, the male married the mother after the child’s birth but did not suspect he was not the father of the child until the child had a mental health issue that caused him to question whether he was the father.  See P.G. v. E.W., 75 So. 3d 777 (Fla. 2d DCA 2011).  The court held this was newly discovered evidence because the medical condition was a new circumstance that caused him to question paternity.  Id.  Newly discovered evidence means evidence that was unknown at the time child support was ordered, not evidence that later became verified with DNA testing.

Also, the requirement of full payment of child support can be problematic to resolving an erroneous order of child support.  If the male was not aware of the child support award, there is often a large amount of money owed.  If the male cannot pay a lump sum to satisfy the full amount, the amount owed continues to accrue interest until it is paid.  Filing the petition to disestablish child support does not halt any child support payments.  All money must be paid or prove inability to pay (voluntary unemployment does not constitute an inability to pay) before the petition can be ruled upon by a judge.

If the mother of the child fails or refuses to make the child available for DNA testing, that can be grounds to have the petition granted in the male’s favor.  However, before this can occur, the male must still satisfy the other requirements to petition the court to disestablish paternity.

The statute has a list of factors that can prevent a judge from disestablishing paternity.  They are as follows:

  1. The evidence was not newly discovered.
  2. The DNA testing was not properly conducted.
  3. The male is not current on his child support obligations or has not shown an inability to pay.
  4. The male has adopted the child.
  5. The child was conceived through artificial insemination while the male and the child’s mother were married.
  6. The male prevented the biological father of the child from asserting his paternal rights to the child.
  7. The child was older than 18 years of age when the petition was filed.

A judge can also deny the petition to disestablish paternity if, AFTER learning that he is not the biological father of the child, the male voluntarily assumes parental responsibility for the child, acknowledged his paternity of the child in a sworn statement, consented to be named as the father on the child’s birth certificate, voluntarily promised in writing to support the child, or receives written notice from any state agency or any court directing him to submit to scientific testing which he disregarded.

If the male is successful in disestablishing paternity and ending child support, he does not get a refund of the child support payments that were already paid.  The judge simply stops any future payments from being ordered.  Also, if there was any arrears from previously ordered child support, the male is still required to pay them.  In short, when it comes to issues concerning paternity and child support, it is better and cheaper to have a DNA test before child support is ordered or the male may be stuck paying for a child that is not his child.

Child Support Guidelines Are Not Mandatory

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The Child Support Guidelines set forth the PRESUMPTION of the amount of child support owed to the primary custodial parent.  There are typically only three circumstances where the amount according to the child support guidelines are not enforced:

  1. Agreement,
  2. The parent cannot afford child support in the amount established by the guidelines, or
  3. The parent is unable to work.

There are also certain deviation factors other than those listed above that will be discussed in another post.  Those factors are listed in Florida Statute 61.30(11)(a).

Agreements

Agreements concerning child support are enforceable under Florida law as long as the agreements are otherwise legal and enforceable.  As a matter of public policy, child support is money owed to the child and therefore neither parent has the right to waive child support.  It must always be ordered (by agreement or otherwise) even if the agreement is not enforced.  The agreement must address the best interests of the child.  The agreements should also state how often support will be paid, when support will terminate, and when support can be modified.  In Gentry v. Morgan, 83 So. 2d 924 (Fla. 3d DCA 2012) the appellate court upheld an agreement that prevented upward modification, to increase child support payments, unless the father’s income increased to a certain amount.  This case and several others show that Florida courts are willing to enforce child support agreements that deviate from the child support guidelines as long as the agreements are otherwise legal and enforceable.

Parent Cannot Afford Guideline Amount

The child support guidelines are designed to consider the incomes of both parents (real or imputed) and calculate the child support based on the percentage of the incomes of each parent.  In situations of an extreme difference in incomes, there could be a situation where the non-custodial parent cannot afford to pay the child support in the amount established by the guidelines.  This generally occurs where the non-custodial parent makes significantly less than the custodial parent.  Florida Statute 61.30(11)(a) states that the court “may adjust the minimum child support award, or either or both parents share of the minimum child support award,” based upon several different considerations, including, “[a]ny other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.”  Alois v. Alois, 937 So. 2d 171, 177 (Fla. Dist. Ct. App. 2006)

In Alois v. Alois, the former husband’s gross income was $79,000 while the former wife’s income was only $34,587. Id. When the former husband became the primary custodial parent, the former wife’s monthly net income was $2,325.22 while the former husband’s net income was $4,767.  The monthly child support as calculated using the child support guidelines would have required the former wife to pay $827.00 to the former husband.  However, upon looking closely at the former wife’s monthly expenses, the court ordered the former wife to pay $200 each month.

The Alois opinion cites several other cases concerning reduction in child support amount based on the ability of the parent to pay.  The common theme throughout those cases is that the “court should consider the non-custodial parent’s ‘basic necessities such as food, housing, utilities and transportation,’ along with the parent’s net income and support obligation, to determine if the parent can economically survive.”  Alois v. Alois, 937 So. 2d 171, 177 (Fla. Dist. Ct. App. 2006)

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There is no set percentage or amount that is considered to be too much and each case has to be decided on an individual basis.  Please note that the Court in Alois looked closely at the former wife’s expenses and also considered expenses that the former wife could eliminate.  The Court found that even if the former wife eliminated her expenses for “cell phone, cable television service, pet, clothing, entertainment, or vacations” that former wife still could not pay the amount under the guidelines. Id at 177.  The Court then set an amount she could afford and capped child support at that amount.  This shows that getting the courts to deviate from the amount established by the guidelines is difficult but not impossible with the right evidence of actual expenses.

Parent Unable to Work

Disability benefits as well as worker’s compensation benefits are considered income under Florida Statute 61.30(2)(a)4 and 61.30(2)(a)5.  For disability benefits and worker’s compensation benefits, those amounts are calculated as income in the same manner as other forms of income for the child support guidelines.  Please note that unemployment is not considered as a special situation because it is considered to be either temporary or voluntary.  If employment is voluntary, income will be imputed and child support guidelines will be based upon the imputed income amount.  If unemployment is temporary, any arrearages unpaid during the unemployment period must be paid when employment is secured.

Social Security benefits are treated differently.  Social Security benefits received for a CHILD as a result of the PARENT’S disability is included as income for the parent AND is credited against the disabled parent’s support obligation.  In Williams v. Williams, 560 So. 2d 308 (Fla. 1st DCA 1990) the former husband was receiving $535 a month in Social Security benefits for himself and former wife was receiving $585 per month in Social Security benefits for the children.  The trial judge erroneously calculated the child support based on the guidelines and ordered former husband to pay $200 per month to former wife.  The appellate court found that if the trial judges had used the guidelines and had correctly credited the Social Security benefits paid to the children, the children were receiving $95 more than what former husband would have been ordered to pay.  The order requiring former husband to pay additional money was reversed.  Id. Veteran’s benefits for both the parent and child(ren) are calculated the same way as Social Security benefits.  Maslow v. Edwards, 59 So. 3d 299 (Fla. 5th DCA 2011).

Conclusion

In conclusion, child support issues are to be resolved in a manner of fairness and equity for both parents.  The guidelines are based upon the estimated amount that would have been spent on the child(ren) if the child(ren) had a two-parent household.  There are special circumstances that require the courts to deviate from the amount established by the guidelines; however, these deviations require proof before they will occur.  In the majority of cases, the guidelines will be ordered unless the proper proof is presented to the opposing party and the court.

Child Support-Allowable Deductions

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There are a lot of lawyers who are paid a lot of money to increase a person’s income for both child support and alimony calculations. Instead of focusing on income calculations, I want to focus on allowable deductions from gross income. The following is an explanation of allowable deductions that can be used to reduce net income for child support purposes.

Uncle Sam: Things that an employer normally automatically deducts from a paycheck are allowable deductions. These include federal, state, and local income taxes, FICA (Social Security), and Medicare taxes.

Mandatory Employer Specific Requirements: If there is a mandatory retirement contribution that is required to be deducted from your paycheck as a condition of employment, this is an allowable deduction. This is not to be confused with an IRA or 401K contribution that is withdrawn from your paycheck. This is a contribution that you cannot stop, even if you wanted to stop it. I remember when I was first employed by the State of Florida, there was no mandatory contribution to the retirement plan. Within a few years of my employment, the law changed and state employees were required to contribute 3% of their income to the retirement plan. I asked my HR director how I could opt-out of the 3% contribution and I was not allowed to opt-out because it was a mandatory contribution. I think this issue is still currently being litigated as you can imagine there were many state employees who did not want to contribute. But as it currently stands, this 3% contribution would be deductible for child support purposes. Also under this category would be mandatory union membership dues for employment.

Court-Ordered Support for Other Child(ren): This provision covers child support that is already being paid for an earlier born child or where child support was already ordered before the current case. This can get complicated if a parent is paying child support for another child but there is no court order requiring payment. In a situation without a court order, the amount paid is considered as a deviation from the guidelines but is not an allowable deduction. Also, if the parent with the support obligation is supporting other children residing with him or her, there is no income deduction that is permitted. The best way to consider this provision is will the parent be arrested (for contempt or a criminal violation) if child support is not paid. Finally, the child support must actually be paid for it to be considered.

Miscellaneous: Health insurance coverage, except for coverage paid for the child, is an allowable deduction. Spousal support (alimony) that is being paid is an allowable deduction. These are the only permitted deductions allowed under Florida Statute 61.30(3).

The easiest way to remember the items listed above would be to consider anything that can be automatically deducted for your paycheck (without you asking for it). Many employers will automatically deduct a contribution for health insurance, retirement plans, and union dues if they are mandatory. Also, income taxes, social security, and Medicare taxes are automatically deducted as well. Child support that is court-ordered as well as spousal support that is court-ordered can be automatically deducted from a paycheck so they also fit into this category. An expense that is not specifically listed in Florida Statute 61.30(3) is not an allowable deduction but may be considered for a deviation from the child support guidelines.

Child Support-Imputed Income

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Child support issues are extremely fascinating to me.  I want to write these posts to educate people on the state of the law in Florida, to get your opinions on the law, and to open a dialogue of potential changes that should be made in the future.  This will be one of several posts about child support.

I want to first discuss imputation of income.  According to Wikipedia, imputation is defined as, “[in statistics], the process of replacing missing data with substituted values.” For child support purposes it means replacing a parent’s actual income for an amount the person should be earning.  If a parent is “voluntarily” unemployed or underemployed, that parent is still required to pay child support based on the amount he or she should be earning.  The best example is a father was employed as a heart surgeon until his wife decided to divorce him.  In his effort to not pay child support, or alimony, he quits his job as a heart surgeon and starts working at McDonalds as a cashier.  Under Florida law, he will be ordered to pay child support based on his wages as a heart surgeon, not as cashier.  Imputation of income is allowed and is appropriate when a parent is earning less and has the capacity to earn more by use of his or her best efforts.

Imputation of income is a two-step process.  The party who wants to impute the income (ie the person who wants the child support) must first prove that unemployment or underemployment is voluntary.  This generally means that the person does not have a mental or physical disability that will prevent him or her from working at full earning potential.  The second requirement is proof that the unemployment or underemployment is caused by the person’s own actions or inaction.  This requires proof that jobs are available in the area where the person lives.  There is no bright line rule that automatically states that staying at home to raise minor children, returning to school to get an advanced degree, or even incarceration requires imputation of income.  Cases are generally determined on an individual basis based on the facts and circumstances.   The amount of income for the imputation is calculated by examining recent work history (no older than 5 years), occupational qualifications, and prevailing earning levels in the geographic area.

Especially important to note is that if a parent’s income is unavailable, or if a parent fails to participate in a child support proceeding, or fails to supply adequate financial information in a child support proceeding, income SHALL automatically be imputed to the parent.  I have seen this occur on far too many occasions and the after effects can be devastating.  I have seen fathers purposely not participate in child support proceedings because they felt it was a waste of time to appear in court.  They felt that child support would be ordered whether they were there or not, so why even go?  Those fathers needed to be there to ensure the judge had the proper information.  If the father does not participate, the information that the mother provides is taken at face value and child support is ordered based on the information she provides, even if the information is inaccurate.  The judges and the parties involved have no way of knowing the true numbers unless both sides participate in the process.

  1. Do you think imputation of income is fair to the unemployed/underemployed parent?
  2. Do you think imputation of income is fair to the parent seeking support?
  3. Do you think income should automatically be imputed if a parent does not participate in child support proceedings?

Principal is not your Pal

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I am not referring to Principal Skinner or many of the fine educators across this country. I am referring to Florida’s Principal Statute. The Principal Statute is found at Fl. Stat. 777.011 and the jury instruction based on the statute says:

“If the defendant helped another person or persons commit or attempt to commit a crime, the defendant is a principal and must be treated as if he or she had done all the things the other person or persons did if 1-the defendant had a conscious intent that hte criminal act be done and 2-the defendant did some act or said some work which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit that crime.”

This means that if a person has any role in a crime, that person is treated as if he or she committed the crime alone.

The best example I have heard explaining the Principal Statute involves a drive-thru at a fast food restaurant.  There are workers who take the order at the speaker. There are cashiers who collect the money.  There are workers who cook and prepare the food. There are workers who package and bag the food. There are workers who hand the food to the customers.  There are even workers who clean the restaurant kitchen or other areas.  All the workers are principals to the act of serving food to customers despite their different roles in the process.

The Principal Statute is especially troublesome for juveniles who hang around children that commit crimes.  The mere appearance of cooperation could be enough to have all children charged with a crime, even if the child was not actually involved.  Despite a playing a minor role in the crime, everyone involved is supposed to be charged and convicted of the same crime.

I have seen plenty of situations where the principal statute was unfairly applied to a person’s case; however, there was nothing that could be done.  In one case, I saw a judge sentence the getaway driver to a crime to more years in prison that the person who actually held the occupants of the house at gunpoint.  The judge said his sentence was just because without the getaway driver driving to the location, the crime would not have occurred. Our criminal justice system is not based on fairness or equity.  It is simply based on the laws in place and judges following the laws.  The prinicipal statute is one law that people should be aware of because it has huge consequences for so many people.

Fort Myers Police Community Focus Groups

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I recently participated in community focus groups to effectuate change in Fort Myers Police Department and the Fort Myers Community.  I have volunteered several hours of time in this effort and overall I am glad I participated.  There are several steps that have already been completed and there is more work to be completed.

I initially was hesitant to participate as a facilitator because the main requirement to facilitate the discussions was to set aside personal feelings.  I have strong opinions about Fort Myers Police Department based on my work experiences and it is difficult for me to not share my thoughts.  I ultimately chose to participate as a facilitator because I am forced to set aside my personal feelings on a daily basis at work and I knew I could set my feelings aside for the greater good.

During the training we were taught to get people to share their opinions so we could gather as much information as possible.  I facilitated two groups at Friendship Missionary Baptist Church.  I learned a lot during the groups such as the strong perception that you cannot ask an officer a question with the officer feeling disrespected and escalating the situation.  It was also shared that people really want officers to get out of their patrol cars and get to know the people better.  I’m really grateful to all the people who showed up and openly shared their feelings and opinions.

Tonight we had a meeting to follow up on the focus groups.  We do not have the results of the focus groups yet.  We discussed our experiences as facilitators, common themes, and areas where we can improve.  We did not have an adequate number of people under the age of 29 to come to the focus groups.  We plan to host additional groups specifically to target the age groups of people under age 18 and people between the ages of 19-29.  I will be contacting people soon with that information.  If you have comments or concerns, please feel free to share with me and I will make sure the information gets to the appropriate people.