Retroactive Child Support Adjustment?

[sheridan]

My divorce was finalized a few years ago. The judgment stated there was no primary custodian and the time-sharing schedule of the minor child was 50/50. During this time my child support payment was $200 bi-weekly. Once school started, the time-sharing schedule would change to 58/42 in favor of the mother. That amounts to 1 additional night every second week. My child support obligation increased to $250 bi-weekly. The mother only honored the increased schedule for a few weeks at which point she just started letting me keep the child at the original 50/50 time-sharing schedule. The problem is that she threatened to take the child back from me that extra day if I attempted to modify my support obligation. Even though I was financially struggling, I just kept paying the increased $250 bi-weekly payment and was happy to be with my child for the additional time and I don't trust the court system. I lost my job this year and have been unable to pay any child support for about 3 months. I recently filed for a modification based on increased time-sharing schedule and my lack of employment. After researching the Florida Statutes, I came to the belief that the support payment should be retroactive for the $50 bi-weekly difference since the other parent changed the court ordered time-sharing schedule. Here is what I am referring to:

61.30.(11)(c) A parent's failure to regularly exercise the court-ordered or agreed time-sharing schedule not caused by the other parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph shall be retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule.

Since she failed to execute the agreed time-sharing schedule and it wasn’t caused by me, shouldn’t a modification be retroactive to the date that she first failed to regularly exercise the court-ordered or agreed time-sharing schedule?

The other issue is just a simple modification. Before I became unemployed, I was only earning 1/3 of what I was making at the time of the divorce. So what I am hoping will happen are two things:

1. The judge change the time-sharing schedule officially to be 50/50 again.
2. The Judge grants a retroactive modification for $50 bi-weekly for the 12 months that I had the child 50/50 but paid the 58/42 amount.
3. The Judge grants a support modification from the day of filing forward for my new income and time-sharing schedule as determined by the Florida Guidelines.

Is my understanding of FL Statute 61.30.(11)(c) correct? What are my chances here?

[Attorney Howard Iken]

Yes, you are reading the statute correctly. But more commonly: a judge will make the change retro to the date the modification case was filed. It may be difficult (but not impossible) to go further back.

Attorney Howard Iken
Divorce Attorneys in Florida


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