A brief introduction to modification of child support in Florida
Child Support in the State of Florida
Florida law states that both parents have both a duty and an obligation to financially support their children, during the marriage and following a divorce. A specific calculation is used to determine the amount of child support which will be paid from one parent to the other, and this determination could be one of the most important decisions made during a divorce proceeding. Many parents believe that only the non-residential parent has an obligation to provide child support, however the formula is much more complex.
Calculating Florida Child Support
First, the parents—or the court—will decide which parent will be the majority parent, or which parent the children will live with for the majority of the time. Then the net income of each parent will be determined by taking the parent’s gross income, and subtracting any allowable deductions. Allowable deductions include:
- Daycare costs;
- Health insurance premiums for the children;
- Health insurance deductibles and non-covered medical expenses;
- Federal, state and local tax deductions;
- Mandatory retirement payments;
- Child and spousal support being paid for a prior marriage;
- Union dues;
- Federal insurance payments, and
- Certain other deductions.
The number of children from this marriage will be factored in, then a percentage of the net income will be allocated, to be paid by each parent. Once these numbers are computed, it will be determined whether the non-majority parent will have at least 73 overnight visits with the children during a calendar year. If so, this amount of time-sharing will result in an adjustment to the amount of child support. In general, there are “formulas” used in the state of Florida which will determine the amount of child support, based on gross income, deductions, net income and number of children from this marriage. The Florida court does, however, have discretion in the matter, and can factor in such things as whether a child requires special psychological, medical or dental care, and whether outside sources of income are available to the child. Retroactive child support can be calculated for the time between when the parents separated and when the child support order went into effect.
How Does Child Support Impact Taxes?
Many parents wonder whether child support is tax deductible. For the purposes of federal tax liability, the receiver of child support is not required to pay taxes on the amount, and the paying spouse may not take a tax deduction for child support paid. This tax determination applies when the child support agreement clearly designates the amount paid or received as child support; in cases where the child support is lumped together and labeled as spousal support or family support, then for tax purposes none of the amount is considered child support. The recipient of the support could then be required to pay taxes on the entire amount, even if a part of the payment is considered child support by the receiver as well as the payer.
Ending Child Support in Florida
If you are the parent paying child support, you may assume that support will end naturally the day your children turn 18. In fact, you may be required to file a Petition to Terminate Child Support. Under Florida statute, most child support orders will contain an end date, specifying that the child support will end on the child’s 18th birthday. If, however, your child support order was signed prior to October, 2010, there may not be a termination date written in. Further, there is an exception to the end date of child support; If your child has not graduated from high school by the time he or she reaches the age of 18, child support will continue until the date of graduation or until the child turns 19. If it is clear the child will not graduate prior to his or her 19th birthday, the paying parent can ask the courts to terminate child support at 18. The idea behind this is that the primary residential parent has some motivation to keep their child moving toward a high school graduation. If you have a special needs child who will probably never become a self-supporting adult, Florida child support may last for the life of the child.
What About a Modification of Child Support?
You may wonder about modifications of Florida child support, both as the parent who receives child support or the parent who pays child support. Florida child support laws allow either parent to file for a modification of child support any time the new support would change by a minimum of $50 or 15 percent. (the petition will be dismissed if the modification would not result in that level of change).
A Significant Change of Circumstances and Child Support Modification
Whether you are asking for an increase in child support to be paid to you or asking for a reduction in the child support amount you are currently paying, the only basis for such changes, under Florida law, centers around a substantial change of circumstances since the entry of the Final Judgment of Dissolution of Marriage. This change in circumstances must be involuntary, meaning a person who quits his or her job simply to avoid paying child support will not qualify for a modification of child support. The change in circumstances must be substantial and must be unforeseen. Losing a job through no fault of your own, getting a better job, taking on greater responsibility with a child or even a change in your employment benefits could all qualify as a material change in circumstances.
Requesting a Decrease in Child Support
If you are the paying parent and are asking for a decrease in the amount of child support you are required to pay, the following is a list of factors which the court may consider:
- You have recently lost your job and have no reasonable expectation of obtaining comparable employment any time in the near future;
- You have otherwise lost a source of income which was material in determining the amount of child support you are required to pay;
- The parent you are paying child support to has experienced a significant change in circumstances, resulting in considerably more money being made on their part;
- The children for whom you are paying child support for have had a significant decrease in expenses such as ending daycare or transferring from a private school to a public school, etc., or
- The time you spend with your children has significantly increased since the original child support calculation.
There may be other circumstances which could qualify for a reduction in the amount of monthly child support you pay as well; an experienced Ayo and Iken Florida family law attorney can determine whether your specific situation applies, when asking for a modification of child support.
Requesting an Increase in Child Support
As the parent who receives child support, there are several situations which could qualify you to receive a modification of child support such as:
- You have recently lost your job and have no reasonable expectation that you will receive a comparable job in the near future;
- You have otherwise lost a material source of income on which your original child support payments were based;
- The parent paying child support has had a significant increase in income, whether from a better employment opportunity or other source of income;
- Your children’s expenses have increased significantly since the child support was originally calculated and awarded, or
- The original amount of time which the other parent was scheduled to have the children (overnight visits) has decreased significantly.
Changes in Expenses or Income as a Reason for Modification
While there are any number of changes for which a modification of Florida child support could be granted, the most common include:
- Changes in daycare expenses quite often result in a necessary change to child support payments. Because daycare expenses can be quite high–$150 per week and up—if daycare ends, say when the child starts school, then the loss of that expenses must be taken into consideration. Or, the parent receiving child support may have taken a job which will require younger children to have daycare, meaning that parent’s expenses, related to the child or children, are going to increase dramatically. (The court will offset the new wages made by the parent returning to work with the childcare expenses). Daycare must be related to employment needs; daycare expenses for a stay-at-home parent will not qualify for a child support modification.
- Spousal support is another issue which can trigger a modification of child support, generally when temporary or a defined-term amount of spousal support ends. Usually more spousal support paid or received equals less child support paid. This means if the paying parent stops paying spousal support to the children’s other parent, he or she now has more income while the receiving parent has less income.
- In some cases, the paying or receiving parent could move to an area which has significantly lower or higher state or city payroll taxes. This change in taxes could drastically affect the amount of income the parent receives.
- While most Florida child support calculations include the cost of health insurance for the children, health insurance premiums may change drastically, requiring a change in child support amounts. A drastic change in either parent’s health insurance premiums could also result in a modification of child support.
- Loss of a job (or when one parent obtains a much higher-paying job) is also a primary reason for a request for modification of child support. If the parent involuntarily loses his or her job, then a temporary modification of child support may be awarded. Job loss situations can be very complex, as there are some parents who may either purposely lose a job simply to avoid paying child support, or may involuntarily lose a job, then not seek new employment for the same reason. If one parent is claiming the other is deliberately unemployed, then evidence must be presented to support such a claim.
Changing the Amount of Child Support
If your Ayo and Iken attorney determines you have reasonable justification to ask for a modification of child support, then a Supplemental Petition to Modify Child Support will be filed which outlines the basic facts of the case, detailing why the court should recognize your change in circumstances. The Petition will be served on the other parent via sheriff or private process server. Once the Petition has been served, a hearing will be scheduled; you may be asked to produce a financial affidavit, or to supply the opposing party with any number of financial documents, such as income records, proof of loss of income, or a new, proposed parenting plan.
Who Will Hear Your Child Support Modification Request
If the same Florida judge is still on the family law bench, he or she will likely hear your request for modification, unless neither parent has an attorney. In this case, the petition will be heard by a General Magistrate. General Magistrates are used to speed up back-logged cases. Further, if the Florida Department of Child Support Enforcement has become
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involved in your child support payments, then a Child Support Hearing Officer will hear your case. You will be required to pay a $50 filing fee to essentially re-open your divorce case, and your request for modification will have the same case number as your original child support order. During the hearing, the court will examine the petition and supporting documentation, and, if they find there has been a material change in circumstances, the amount of child support will be modified.
Getting Help from Your Ayo and Iken Attorney
Because a child support order can potentially shift significant amounts of money from one parent to another, modifications of child support are extremely serious, but on the flip side, a child support modification is your legal right when specific circumstances exist. If you believe you may qualify for a child support modification, it is important to speak to your family law attorney as soon as possible to get the process started.