Temporary Child Support In A Florida Divorce
When two parents get divorced in Florida, one parent inevitably leaves the house and the kids. Those kids still need food, clothing and shelter. The parent who has left has an obligation to support their children. The parent who has the kids does not need to wait until the divorce is finalized to ask for child support.
The parent who has the children can ask for temporary child support from the other parent during the pendency of a Florida divorce.
Motions for temporary child support work using the exact same legal principles as when permanent child support is decided when a Florida divorce is finalized. Child support in Florida is determined by “the guidelines.”
“[C]hild support guidelines …we conclude, are applicable to temporary support orders.” Burkhart v. Burkhart, 620 So.2d 225, 226 (Fla. 1st DCA 1993)
How Is Child Support Determined In Florida
Normally, child support is decided by using “child support guidelines.”
“The following principles establish the public policy of the State of Florida in the creation of the child support guidelines:
(1) Each parent has a fundamental obligation to support his or her minor or legally dependent child.
(2) The guidelines schedule is based on the parent’s combined net income estimated to have been allocated to the child as if the parents and children were living in an intact household.
(3) The guidelines encourage fair and efficient settlement of support issues between parents and minimizes the need for litigation.” Fla. Stat. Sec. 61.29
What are the Florida child support “guidelines?”
“The child support guideline amount as determined by this section presumptively establishes the amount the [judge] shall order as child support in an initial proceeding for such support or in a proceeding for modification of an existing order for such support…This requirement applies to any living arrangement, whether temporary or permanent.” Fla. Stat. Sec. 61.30(1)(a)
The inputs for the guidelines are both parents’ incomes.
“In calculating child support, a trial court must determine each parent’s income. To ascertain the presumptive minimum amount of monthly child support, the Florida Legislature devised the child support guidelines, which take into account “combined monthly available income” and the number of children.” Shaw v. Nelson, 4 So. 3d 740 – Fla: Dist. Court of Appeals, 1st Dist. 2009
The combined monthly net income then refers to an amount that is presumed to be the cost of raising the child(ren).
“Combined Child or
Monthly Net Children
Income
One Two Three Four Five Six
[by way of example]
5,000 1,000 1,551 1939 2188 2387 2551”
– Fla. Stat. Sec. 61.30(6)
“Each parent’s actual dollar share of the total minimum child support need shall be determined by multiplying the minimum child support need by each parent’s percentage share of the combined monthly net income.” Fla. Stat. Sec. 61.30(10)
So, in the above scenario where the parents make $ 5,000 net income jointly, but Dad makes $ 3000 and Mom makes $ 2000, Dad would pay $930.60 ($1,551 * .6) to Mom if Mom had full custody.
If Dad was exercising a lot of parenting time, the amount would be adjusted.
“Whenever a particular parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support, as follows:
1. In accordance with subsections (9) and (10), calculate the amount of support obligation apportioned to each parent without including day care and health insurance costs in the calculation and multiply the amount by 1.5.
2. Calculate the percentage of overnight stays the child spends with each parent.
3. Multiply each parent’s support obligation as calculated in subparagraph 1. by the percentage of the other parent’s overnight stays with the child as calculated in subparagraph 2.
4. The difference between the amounts calculated in subparagraph 3. shall be the monetary transfer necessary between the parents for the care of the child, subject to an adjustment for day care and health insurance expenses.” Fla. Stat. Sec. 61.30(11)(b)
No need to go through this next mathematical step. Just understand it and use Family Law Software to calculate child support down to the penny.
Special Considerations For Temporary Child Support In Florida
Child support is based on both parents’ net incomes. In order to get temporary child support, you must disclose your income to the court and the other parent.
“In any proceeding for temporary financial relief heard within 45 days of the service of the initial pleading or within any extension of the time for complying with mandatory disclosure granted by the court or agreed to by the parties, the following documents must be served on the other party: (1) A financial affidavit in substantial conformity with Florida Family Law Rules of Procedure Form 12.902(b) if the party’s gross annual income is less than $50,000, or Florida Family Law Rules of Procedure Form 12.902(c) if the party’s gross annual income is equal to or more than $50,000. This requirement cannot be waived by the parties. The affidavit must also be filed with the court.
(2) All federal and state income tax returns, gift tax returns, and intangible personal property tax returns filed by the party or on the party’s behalf for the past year. A party may file a transcript of the tax return as provided by Internal Revenue Service Form 4506 T in lieu of his or her individual federal income tax return for purposes of a temporary hearing.
(3) IRS forms W-2, 1099, and K-1 for the past year, if the income tax return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3 months before service of the financial affidavit.” Fla. Fam. L. R. P. 12.285(d)
These disclosures should be served on the other parent with your motion for temporary child support.
“The party seeking relief must serve the required documents on the other party with the notice of temporary financial hearing” Fla. Fam. L. R. P. 12.285(b)(1)(A)
The financial affidavit is the only document that MUST be completed and tendered in order for a hearing on temporary child support to proceed.
“Temporary support issues cannot always await full discovery or the preparation of an expert’s opinion.” Ghay v. Ghay, 954 So. 2d 1186 – Fla: Dist. Court of Appeals, 2nd Dist. 2007
“A temporary support order is often required at the beginning of the dissolution action, before the parties have had an opportunity to complete discovery. Given the urgency of some of these matters, the order is often based upon an abbreviated hearing and limited evidence.” Dent v. Dent, 851 So.2d 819, 821 (Fla. 2d DCA 2003)
For temporary support hearings“the trial court must take the financial affidavits and the other evidence presented and make the best determination it can on the available evidence.” Blum v. Blum, 769 So. 2d 1142 – Fla: Dist. Court of Appeals, 4th Dist. 2000
The court’s decision to award child support usually happens months after the motion for temporary child support was filed. The court will award a retroactive amount of temporary child support going back to when the motion for temporary child support was filed.
A Florida divorce court must “award retroactive support…where there is a need for child support and an ability to pay.” Leventhal v. Leventhal, 885 So.2d 919 (Fla. 3d DCA 2004)
The retroactive child support is mandatory…but it never goes back further than when the motion for temporary child support was filed.
“It is error to award child support which is retroactive to a date prior to a request for modification of an order which previously addressed child support.”); Wertheim v. Wertheim, 667 So.2d 331, 332 (Fla. 1st DCA 1995)
Temporary child support orders are often affected by the fact that the children still live in the home the other spouse is paying towards. An absent parent who pays bills for the children will be given a credit for those bills towards the child support that they owe.
“When one party pays the mortgage payment or housing expenses of another party, it is considered an in kind contribution for purposes of the child support guidelines” Bond v. Bond, 224 So. 3d 874 – Fla: Dist. Court of Appeals, 2nd Dist. 2017
“Income [for the purposes of child support] shall be determined on a monthly basis for each parent…including… Reimbursed expenses or in kind payments to the extent that they reduce living expenses.” Fla. Stat. § 61.30(2)(a)(13)
Temporary child support is handled a little loosely compared to the final child support order because all temporary order can be undone and/or corrected as more accurate information about the parties’ incomes and parenting schedule is made available to the court.
“In addition, temporary support orders are, obviously, temporary. They do not create vested rights, and they can be modified or vacated at any time by the circuit court while the litigation proceeds. If further discovery reveals that a temporary support order is inequitable or based upon improper calculations, any inequity can usually be resolved in the final judgment, after a full and fair opportunity to be heard.” Ghay v. Ghay, 954 So. 2d 1186 – Fla: Dist. Court of Appeals, 2nd Dist. 2007 (citations omitted)
If you need temporary child support during your Florida divorce, contact my Naples, Florida family law firm to speak with an experienced Florida divorce attorney.
Article Source : divorceattorneynaplesfl.com...
