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.

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