The Matter of Child Support in Divorce Cases
When divorcing (or separating in the case of unwed parents), couples with children often find one of the most complicated issues to overcome is regarding custody and child support. The bickering between parents over custody and visitation has the potential to become explosive, unfortunately frequently putting children in the middle.
According to Florida‘s Child Support Benchbook 2012, either parent can petition the court when the child is a minor, pursuant to Lawrence v. Hershey, 890 So. 2d 350 (Fla. 4th DCA 2004). Chapter 61.13 of the 2015 Florida Statutes provides the child support statutes that enable the court to determine issues regarding child support of minor children.
In determining an order of support, the court also requires that the parent ordered to pay child support also pay for health insurance for each of the minor children, not to exceed 5 percent of the gross income of the parent paying the support. The cost of child support will be credited to the paying parent in the child support guidelines, thereby either decreasing the child support obligation for the parent paying health insurance, or increasing the child support obligation for parent paying child support if the other parent is paying health insurance on behalf of the child.
The fact that parents do not stay together does not necessarily mean the disagreement extends to the matter of distribution of support for the minor children. Florida Statutes allow that “If both parties request and the court finds that it is in the best interest of the child, support payments need not be subject to immediate income deduction.” Instead, the obligor may pay child support into the state depository system, under s. 61.181, or directly to the parent to whom the support is to be made.
However, when a parent fails to pay child support, the court can act to secure defaulted payments. When a court makes an initial order for support, that court retains continuing jurisdiction in the matter and may issue an order to determine the address and location of the defaulting parent. The court may require that defaulted payments be withheld from the obligor’s pay, in addition to current payments or take other action that the court deems necessary to secure support and health insurance payments for each of the minor children. For example, if a parent who has defaulted on child support may have his or her tax refund payments withheld and sent to the other parent to cover or contribute to the outstanding child support obligation.
Parents should understand that child support is the right of the child and cannot be waived by either party. As stated above, the cost of health insurance can be credited to the paying party in the child support guideline calculation. The same is true for the cost of after school care or day care. However, child support does not include the cost of extra-curricular activity expenses, non-reimbursed medical expenses, private school, school supplies and uniforms, etc. Those expenses, with the exception of private school, are normally shared by the parties pursuant to their respective incomes. Private school will only be ordered by a court in certain situations depending on the facts of the case and either the court will have to determine how the private school tuition will be paid or the parties will reach an agreement so to that payment.
Although some parents decide to represent themselves in the matter of child support, a family law attorney with the expertise and experience in family law proceedings can provide a parent with representation that keeps in mind the best interest of the child, while also providing the legal guidance and representation to the parent-client. Hiring a private attorney to represent one in child support issues is always ideal, but the State of Florida’s Child Support Enforcement is available to parties seeking pro bono legal representation on issues involving child support.
Article updated October 28, 2020.