Separated parents of minor children must address the issue of child support. The law obligates both parents to support their children to the best of their respective financial abilities. Child support is not necessarily calculated based upon the true needs of the child(ren). Instead, the basis for calculating the amount of child support each parent must contribute is the Florida Child Support Guidelines, which is a formula that takes into account, among other things, the number of children, the respective incomes of the parties, the cost of health insurance (provided it is reasonably available), the cost of day care or after school care, and the division of time sharing between the parties. The division of time sharing between the parties is calculated based upon the number of overnights each party has with the child(ren). Because the child support obligation is a right that belongs to the children, it cannot be waived or bargained away by either party.
As previously stated, the child(ren)’s health insurance cost is taken into consideration when calculating child support, but any noncovered medical expenses incurred on the child(ren)’s behalf are not part of child support. Those noncovered medical expenses are typically shared by the parties pursuant to their percentages of income as reflected in the child support guidelines. Similarly, any and all extra-curricular activity expense incurred on behalf of the child(ren) would also be shared by the parties proportionate to their respective incomes. Private school is not covered by child support and normally cannot be ordered by the court unless there are circumstances justifying it, such as a history of a child attending private school and a clear ability by at least one of the parties to pay the private school tuition.
There are times that the income of a party is not clear, and it is necessary to determine what the true income is. Income is not necessarily what that party is earning at the time child support is being calculated, but rather, it is his/her capacity to earn. We may look at the historical income of a party to determine his/her current ability to earn income. If a party is receiving alimony, that alimony payment is taken into consideration when calculating child support because it is attributable as income to the receiving party. If a party is paying alimony, that alimony payment is also taken into consideration because it is an expense and reduces the income of the paying party.
Unlike alimony, child support is not usually negotiated between the parties, since there is a formula that should be followed. However, the court may deviate from the child support guidelines calculation up or down by 5% without any specific findings. For the court to deviate beyond 5%, the court needs to make specific findings detailing the reasons and circumstances that justify that award. It is rare for the court to deviate beyond 5%, but it may happen if the situation warrants it. It is important to note that child support can always be modified if the parties are not following the timesharing schedule outlined in their agreement or ordered by the court, or if a party is earning substantially more or less income since the entry of an agreement or court order.
Once child support is determined and awarded, the recipient party is entitled to receive the support via Income Withholding Order, which means that the payments are automatically deducted from the payor’s income by his/her employer and paid directly to the recipient. An Income Withholding Order often times eliminates the need for the recipient to have to “chase down” the payor for the monthly support payment.
If you and your spouse/partner have been separated and child support has not been calculated or awarded, you may be entitled to retroactive support, depending on the facts of your case. This means that the party that has the child(ren) for less overnights and/or is earns a higher income, may owe child support to you for the period of time that you have been separated and living in different households.
Calculating the amount of child support due from each parent involves many legal and factual issues, including what income is counted toward the child support obligation and what deductions from this income are recognized. If a parent is self-employed, voluntarily unemployed, or voluntarily underemployed, then the determination of the parent’s income can become very complicated. Navigating the technical complexities of this area is not recommended without the assistance of an experienced attorney.
This is probably your first time dealing with these important issues, but it certainly is not ours...