Child Support F.A.Q.
IS CHILD SUPPORT TAXABLE AND/OR DEDUCTIBLE ?
Child-support payments are not deductible by the paying parent or taxable to the receiving parent and technically, the actual child support payments are not the property or income of the receiving parent but are rather the property of the child/ren for whom the payment is made.
MY CHILD SUPPORT ORDER INDICATES WHEN MY CHILD TURNS 18, I AM NO LONGER REQUIRED TO PAY CHILD SUPPORT, DO I NEED TO SUBMIT ANY KIND OF PAPERWORK TO HAVE THE CHILD SUPPORT STOPPED?
Unless the final judgment provides for an automatic order to issue eliminating the child support for that child then yes you will need to file a Petition for Modification of Child Support based upon the eldest child obtaining majority. Within that action the child support for the remaining children will be recalculated based upon the parties then existing net incomes.
WHAT CAN I DO IF MY FORMER SPOUSE DOES NOT PAY CHILD SUPPORT AS ORDERED?
The proper procedure for enforcing any order through the court is to file a motion for contempt. When prosecuting a motion for contempt you must prove to the court that your former spouse has the ability and/or assets to pay the child support obligation as ordered but they refuse to do so. If you are able to meet that burden, the court has available numerous tools to compel your former spouse to pay their child support obligation including jail time, suspension of their drivers license and/or professional licenses.
I HAVE BEEN ORDERED TO PAY AN AMOUNT OF CHILD SUPPORT THAT I CANNOT AFFORD, WHAT ARE MY OPTIONS?
You can file a Petition for Modification of Child Support if there has been a substantial change in circumstances. It is imperative that you file this petition in a timely manner, as there are consequences for the non-payment of child support.
DOES THE CHILD SUPPORT CALCULATION TAKE INTO ACCOUNT SUCH THINGS AS HEALTH INSURANCE AND DAY CARE NEEDS FOR THE CHILD?
Yes. The statute describes how health insurance and day/after care needs are to be factored into the child support calculations.
WHAT IF MY FORMER SPOUSE DOES NOT REPORT ALL OF THEIR INCOME OR IS NOT EARNING AS MUCH AS HE/SHE COULD WITH REGARD TO CALCULATING CHILD SUPPORT?
The court has the ability to impute income to a former spouse. If it is shown that your former spouse is capable of earning more than they currently are, the Court will calculate the child support according to that higher amount. If you feel that your former spouse is not reporting all of their earnings, it will be your burden to prove that they are doing so.
CAN THE COURT IMPUTE INCOME TO ME IF I WANT TO STAY HOME WITH MY SMALL CHILDREN?
It is in the Court’s discretion as to whether or not they will impute income to a parent who feels the need to stay at home with a young child/ren. A former spouse can argue however, that there is a quality daycare facility available at a reasonable cost that the child/ren can attend thereby permitting you to return to the work force.
MY SPOUSE WILL NOT ALLOW ME TO HAVE TIME SHARING OR CONTACT WITH MY CHILDREN. DO I STILL HAVE TO PAY CHILD SUPPORT?
Yes. Being denied time sharing or parenting rights is not a legal reason to withhold payment of child support.
CAN I GET CREDIT ON MY CHILD SUPPORT OBLIGATION FOR LAST YEAR IF I HAD OUR CHILD RESIDING IN MY RESIDENCE 48% OF THE TIME THAT YEAR?
That depends on whether or not the case pending regarding your child support is one to initially establish child support or if there is an existing order and you had your child for the period stated but did not pay child support during that time. In a case seeking to establish child support the court can order retroactive support for a period of 24 months prior to the date the Petition to Establish Support was filed, so in that instance the court could/should consider the time the child was in your care when calculating retroactive support. On the other hand, where a child support order is already in existence the court is prevented from making any modifications to that support order prior to the date a party files the request for such a change. For example, you file June 1, 2009 to modify your child support obligation because your child has been primarily residing with you since March 3, 2009. The court, if it were to grant your modification, could only do so from June 1, 2009 regardless of when your child began to reside with you.
WHAT ABOUT COLLEGE EXPENSES FOR THE CHILDREN?
Courts cannot order a parent to pay for a child’s college expenses, but if the parties come to an agreement that one party is to provide such support, then the Court can enforce that agreement.
IF MY FORMER SPOUSE DOES NOT REPORT ALL OF HIS/HER INCOME, HOW DO I PROVE WHAT HE/SHE EARNS?
You can testify as to what your former spouse has told you regarding their income, you may bring other witnesses to testify, or you can attempt to prove your spouses income based on the lifestyle you and your former spouse enjoyed while the marriage was intact. For former spouses that are self employed we generally seek out information regarding monthly expenses that are being met by the former spouse either through income they report and/or personal expenses they are passing through the business. In some instances this may require retaining a forensics accountant.
CAN I REMAIN IN POSSESSION OF MY MARITAL RESIDENCE AND RESIDE THERE WITH MY CHILREN EVEN AFTER MY DIVORCE IS OVER?
Possibly, yes. In some instances where equity demands and the children are well established in neighborhoods and the school system and other arrangements are not feasible, the Court can issue an order providing that the spouse, who is to provide the majority of care for the children, may continue to reside in the marital residence until such time as all of the minor children obtain the age of 18 years of age and graduate from high school. The payments to maintain the marital residence and how the proceeds on the sale of the home will be distributed between the parties are also factors that must be determined and ordered under such arrangements.
MY SPOUSE AND I ARE SEPARATED BUT HE/SHE REFUSES TO PROVIDE ANY FINANCIAL SUPPORT FOR OUR CHILDREN; HOWEVER, NEITHER OF US WISHES TO SEEK A DIVORCE AT THIS TIME, WHAT ARE MY RIGHTS?
Whether you plan to get a divorce or have no such plans, you can petition the Court for an order establishing child support.
MY CHILD'S FATHER PAYS CHILD SUPPORT TO ME FOR OUR CHILD AND I RECENTLY LEARNED THAT HE IS THE FATHER OF ANOTHER CHILD THAT IS DUE TO BE BORN IN THE NEXT FEW WEEKS. WILL THE BIRTH OF THE SECOND CHILD HAVE ANY EFFECT ON THE CHILD SUPPORT HE PAYS FOR OUR CHILD?
In Florida, the existence of an after born child/ren will not generally permit a parent paying child support for a previously born child to reduce his her or child support obligation to that previously born child.
However, the existence of an after born child can be used to defeat a request for an upward modification of child support. For example, your current child support order has been in effect for approximately two years and you learn that your former spouse has received a raise in his or her pay at work. The fact that they received that raise in pay could be considered a substatial change in circumstances justifying an increase in your former spouses child support obligation. However, if they had remarried and had another child or had otherwise become financially responsible for another child that fact could be utilized to defeat any action filed to increase their child support based upon their increase in income.
Child-support payments are not deductible by the paying parent or taxable to the receiving parent and technically, the actual child support payments are not the property or income of the receiving parent but are rather the property of the child/ren for whom the payment is made.
MY CHILD SUPPORT ORDER INDICATES WHEN MY CHILD TURNS 18, I AM NO LONGER REQUIRED TO PAY CHILD SUPPORT, DO I NEED TO SUBMIT ANY KIND OF PAPERWORK TO HAVE THE CHILD SUPPORT STOPPED?
Unless the final judgment provides for an automatic order to issue eliminating the child support for that child then yes you will need to file a Petition for Modification of Child Support based upon the eldest child obtaining majority. Within that action the child support for the remaining children will be recalculated based upon the parties then existing net incomes.
WHAT CAN I DO IF MY FORMER SPOUSE DOES NOT PAY CHILD SUPPORT AS ORDERED?
The proper procedure for enforcing any order through the court is to file a motion for contempt. When prosecuting a motion for contempt you must prove to the court that your former spouse has the ability and/or assets to pay the child support obligation as ordered but they refuse to do so. If you are able to meet that burden, the court has available numerous tools to compel your former spouse to pay their child support obligation including jail time, suspension of their drivers license and/or professional licenses.
I HAVE BEEN ORDERED TO PAY AN AMOUNT OF CHILD SUPPORT THAT I CANNOT AFFORD, WHAT ARE MY OPTIONS?
You can file a Petition for Modification of Child Support if there has been a substantial change in circumstances. It is imperative that you file this petition in a timely manner, as there are consequences for the non-payment of child support.
DOES THE CHILD SUPPORT CALCULATION TAKE INTO ACCOUNT SUCH THINGS AS HEALTH INSURANCE AND DAY CARE NEEDS FOR THE CHILD?
Yes. The statute describes how health insurance and day/after care needs are to be factored into the child support calculations.
WHAT IF MY FORMER SPOUSE DOES NOT REPORT ALL OF THEIR INCOME OR IS NOT EARNING AS MUCH AS HE/SHE COULD WITH REGARD TO CALCULATING CHILD SUPPORT?
The court has the ability to impute income to a former spouse. If it is shown that your former spouse is capable of earning more than they currently are, the Court will calculate the child support according to that higher amount. If you feel that your former spouse is not reporting all of their earnings, it will be your burden to prove that they are doing so.
CAN THE COURT IMPUTE INCOME TO ME IF I WANT TO STAY HOME WITH MY SMALL CHILDREN?
It is in the Court’s discretion as to whether or not they will impute income to a parent who feels the need to stay at home with a young child/ren. A former spouse can argue however, that there is a quality daycare facility available at a reasonable cost that the child/ren can attend thereby permitting you to return to the work force.
MY SPOUSE WILL NOT ALLOW ME TO HAVE TIME SHARING OR CONTACT WITH MY CHILDREN. DO I STILL HAVE TO PAY CHILD SUPPORT?
Yes. Being denied time sharing or parenting rights is not a legal reason to withhold payment of child support.
CAN I GET CREDIT ON MY CHILD SUPPORT OBLIGATION FOR LAST YEAR IF I HAD OUR CHILD RESIDING IN MY RESIDENCE 48% OF THE TIME THAT YEAR?
That depends on whether or not the case pending regarding your child support is one to initially establish child support or if there is an existing order and you had your child for the period stated but did not pay child support during that time. In a case seeking to establish child support the court can order retroactive support for a period of 24 months prior to the date the Petition to Establish Support was filed, so in that instance the court could/should consider the time the child was in your care when calculating retroactive support. On the other hand, where a child support order is already in existence the court is prevented from making any modifications to that support order prior to the date a party files the request for such a change. For example, you file June 1, 2009 to modify your child support obligation because your child has been primarily residing with you since March 3, 2009. The court, if it were to grant your modification, could only do so from June 1, 2009 regardless of when your child began to reside with you.
WHAT ABOUT COLLEGE EXPENSES FOR THE CHILDREN?
Courts cannot order a parent to pay for a child’s college expenses, but if the parties come to an agreement that one party is to provide such support, then the Court can enforce that agreement.
IF MY FORMER SPOUSE DOES NOT REPORT ALL OF HIS/HER INCOME, HOW DO I PROVE WHAT HE/SHE EARNS?
You can testify as to what your former spouse has told you regarding their income, you may bring other witnesses to testify, or you can attempt to prove your spouses income based on the lifestyle you and your former spouse enjoyed while the marriage was intact. For former spouses that are self employed we generally seek out information regarding monthly expenses that are being met by the former spouse either through income they report and/or personal expenses they are passing through the business. In some instances this may require retaining a forensics accountant.
CAN I REMAIN IN POSSESSION OF MY MARITAL RESIDENCE AND RESIDE THERE WITH MY CHILREN EVEN AFTER MY DIVORCE IS OVER?
Possibly, yes. In some instances where equity demands and the children are well established in neighborhoods and the school system and other arrangements are not feasible, the Court can issue an order providing that the spouse, who is to provide the majority of care for the children, may continue to reside in the marital residence until such time as all of the minor children obtain the age of 18 years of age and graduate from high school. The payments to maintain the marital residence and how the proceeds on the sale of the home will be distributed between the parties are also factors that must be determined and ordered under such arrangements.
MY SPOUSE AND I ARE SEPARATED BUT HE/SHE REFUSES TO PROVIDE ANY FINANCIAL SUPPORT FOR OUR CHILDREN; HOWEVER, NEITHER OF US WISHES TO SEEK A DIVORCE AT THIS TIME, WHAT ARE MY RIGHTS?
Whether you plan to get a divorce or have no such plans, you can petition the Court for an order establishing child support.
MY CHILD'S FATHER PAYS CHILD SUPPORT TO ME FOR OUR CHILD AND I RECENTLY LEARNED THAT HE IS THE FATHER OF ANOTHER CHILD THAT IS DUE TO BE BORN IN THE NEXT FEW WEEKS. WILL THE BIRTH OF THE SECOND CHILD HAVE ANY EFFECT ON THE CHILD SUPPORT HE PAYS FOR OUR CHILD?
In Florida, the existence of an after born child/ren will not generally permit a parent paying child support for a previously born child to reduce his her or child support obligation to that previously born child.
However, the existence of an after born child can be used to defeat a request for an upward modification of child support. For example, your current child support order has been in effect for approximately two years and you learn that your former spouse has received a raise in his or her pay at work. The fact that they received that raise in pay could be considered a substatial change in circumstances justifying an increase in your former spouses child support obligation. However, if they had remarried and had another child or had otherwise become financially responsible for another child that fact could be utilized to defeat any action filed to increase their child support based upon their increase in income.