Getting Child Support Without Divorce
Money concerns can paralyze some spouses and prevent them from filing for divorce. Even if the marriage is irretrievably broken (or perhaps even abusive), a spouse may choose to stay in the relationship because he or she is uncertain of how he or she will make ends meet. These financial concerns are only exacerbated when a couple has children. Consider the situation of Mandy. Mandy may believe that it is in her best interests to file from divorce from her husband Zach. However, Zach has traditionally made more money than Mandy and has paid the mortgage and most of the bills. Mandy may be fearful of filing for divorce because she may not be sure how she will afford basic living expenses without Zach’s income. If Zach and Mandy have children, Mandy’s concerns about being able to afford basic expenses may be increased.
Most divorcing couples understand that, when the parties have children as part of the marriage, a court is likely to award child support to the residential parent. Fewer divorcing spouses know that a court can award temporary child support before any divorce or paternity case is ever filed.
Basics of Florida Child Support
Although one or both parties in a divorce or paternity action typically ask the court to determine and award child support, it is not required that a party specifically ask for child support in order for child support to be ordered. In other words, a court can determine on its own that child support ought to be ordered and enter such an order, even if neither the mother nor the father specifically asked for the court to do so.
As is true in many states, child support in Florida is calculated according to a statutory formula. In order to calculate child support in a simple case, a court first notes the number of children the parties have. Once this is ascertained, the actual calculation of child support begins by considering the net income of each of the parties. Even income from self-employment activities is to be considered by the court. Adding the net income (that is, income after taxes and deductions) of the parties yields a total income figure.
Once a court determines a total income figure for the parties, a court consults the Florida child support guidelines to determine what the total child support obligation is for the parties. This total obligation amount reflects what the parties are expected to contribute, each according to the percentage of income they contribute to the total income figure. For example, suppose that two divorcing spouses have a total combined gross income figure of $7,000 per month. The couple has one child who is 9 years old. According to the Florida child support guidelines, the couple has a total child support obligation of $1,212.00. Suppose further that the wife’s income represents 60% of the $7,000 figure, while the husband’s income represents 40%. The wife’s child support obligation would be about $727.00 ($1,212 x 60%) and the husband’s obligation would be $485.00 ($1,212 x 40%). The party designated as the residential parent (that is, the parent with whom the child primarily resides) would receive the amount of the other party’s child support obligation. Thus, if the wife is designated the residential parent, she would receive $485 from the husband; if the roles were reversed, the husband would receive $727 from the wife.
A court can consider certain adjustments and deductions to the child support amount, depending on the circumstances of the parties. For instance, if one parent provides health insurance for the child, or if the parents are sharing parenting time with the child on a nearly equal basis, the child support obligation of the parties can be adjusted accordingly.
The amount of child support the court determines according to the guidelines is a presumed amount. A court is required to order this presumed amount (within a few percentages) unless it makes specific written findings justifying an amount different from the presumed amount.
Once a court has entered a child support order, it can be modified only upon a change in circumstances of the parties. Things such as a new job, a job loss, or a promotion can all be considered substantial enough to justify reevaluating a previously entered child support order. Also, the passage of a certain number of years alone can be considered enough of a “change in circumstance” to justify reevaluating a previous child support order.
Can I Obtain Temporary Child Support Before a Divorce or Paternity Action is Finalized?
When one party files for divorce or a determination of paternity, either party can request the court order temporary child support. This temporary child support order would then remain in effect pending the final resolution of the case. The award of child support during the pendency of a divorce or paternity action is considered temporary because the court can always decide to reverse or modify the order depending on the evidence presented at the final hearing on the divorce or paternity action. For instance, a mother may be granted temporary child support after a court designates her the temporary residential parent. If the court determines at the final hearing that the father should be designated the residential parent, the court will likely require the mother to pay the father child support.
Temporary child support can be particularly beneficial for a parent who is fearful of remaining in a relationship and wants to remove him- or herself and the parties’ child but is concerned about how to make ends meet without the benefit of the other parent’s income.
Can I Obtain Temporary Child Support Without a Divorce or Paternity Action Being Filed?
Many individuals in Florida may be surprised to learn that a court can be asked to order child support even if there is no divorce or paternity action filed. Spouses who are residing in Florida and who are apart from the other spouse and child may request a Florida court determine his or her financial support obligation as to the spouses’ child. Upon such a request, a court will examine the financial situation of the requesting party and then determine what that person’s child support obligation is to his or her child (or if any obligation exists at all). A court will determine this obligation regardless of the reasons why the spouse is separated from his or her spouse and child. In other words, it does not matter if the spouse residing in Florida apart from the other spouse was at fault for the separation or whether the other spouse was responsible for the separation.
The statute authorizes a spouse to ask a court to not only determine his or her obligation toward a child but also toward the other spouse. A court will do this in the same general manner as the court determines the obligation toward the child. The court will examine the financial situation of the requesting spouse and then enter an order setting the amount of the obligation. As is true with requests to determine a child support obligation, the court can also find that a party has no obligation to support his or her spouse.
Under this statute, there is no requirement for the requesting spouse to have filed a divorce or paternity action. Similarly, there is no requirement that a divorce or paternity action have been commenced against the requesting spouse. In fact, a divorce or paternity action can be commenced any time after a spouse has requested the court to determine his or her child support or spousal support obligation under this statute.
Why might a spouse want a court to determine his or her child support obligation under this method as opposed to bringing a divorce or paternity action? Obviously, if the parties are separated but the requesting spouse does not wish to file for divorce, this method may provide a good compromise by allowing the parties to remain married but still giving the spouse with custody over the child support payments to help support the child. Or the requesting spouse may have attempted to negotiate a child support payment with the other spouse but the other spouse has refused to cooperate or turn over any information necessary to calculate such payments under the traditional method. Or perhaps the requesting spouse has deemed it more advantageous to have the child support obligation calculated under this method as opposed to the traditional method. An order entered pursuant to this method could only be changed after showing there has been a substantial change in circumstance.
It is important to note that only the spouse who is living in Florida apart from the other spouse and child can petition the court for such a determination. If the spouse who has custody of the child wishes for a court to impose a child support obligation on the other spouse, he or she must file a divorce or paternity action.
It is also important to note that a spouse who is otherwise eligible to request the court for a child support obligation may not ask for a court to determine his or her child support obligation if there is already a pending divorce or paternity action. In other words, a spouse cannot be a party to a divorce action (in which child support would be determined) and request that a court determine his or her child support obligation under this statute.
A determination of child support is a frequent feature of many Florida divorces. Child support in Florida is determined according to a formula that is set forth in the Florida child support guidelines. Under this formula a court considers the net income of both of the parties as well as the number of children of the parties’ marriage. Using this information, the court consults the child support guidelines for the appropriate total child support obligation amount for the parties. The parties then share this obligation amount in the same proportion as their contribution to the overall total net income figure.
In many cases, when a party initially files a divorce or paternity action they also ask the court to set a temporary child support amount. This is meant to provide the requesting spouse with some monetary resources with which to support the child or children while the divorce or paternity action is pending. At the final hearing on the divorce or paternity petition, the court will then set a more permanent child support amount based on its findings related to the custody of the child and the financial situation of the parties. These orders can then be reviewed and, if necessary, modified after a certain number of years or when there is a substantial change in the parties’ financial circumstances (such as a promotion or job loss).
In some cases, a party who is residing in Florida away from his or her other spouse and child can petition a Florida court to determine a child support obligation amount so long as there is no pending divorce or paternity action to which the requesting spouse is a party. This option is not available to the spouse who has custody of the child. Upon request, the court will consider the financial circumstances of the requesting party and establish a child support obligation amount. This amount can then be later modified if the circumstances warrant such a change. In addition, seeking the establishment of a child support obligation under this method does not preclude the requesting spouse from later filing a divorce or paternity action if he or she chooses.
While the basics of Florida child support law are relatively easy to understand, there are various nuances in the law that can be difficult to apply. Consulting with an experienced Ayo and Iken child support attorney is advisable so that divorcing parents understand their rights and have the best possible chance of achieving their objectives and goals as they relate to child support.
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