Divorce

In Florida, child support and time-sharing are viewed as entirely separate issues. It is the legal responsibility of both parents to provide support for their child or children, regardless of time-sharing arrangements. Under the law, it is the legal right of the child, not the parents, to receive child support, and any money received by one parent from the other must be used for the health, care and maintenance of the child, not for the needs or wants of the parent. Further, because it is the child’s right to receive support, neither parent can waive that right.

The state has developed a formula to help calculate the appropriate amount of child support each parent owes. This formula is set forth in the Florida Child Support Guidelines, an easy-to-use form provided by the state. The key, of course, is to input the correct numbers in the calculation. To correctly calculate child support, the parties must determine the number of overnights they each will have with the child or children, and the financial needs of each child with regard to medical insurance and other medical expenses not covered by insurance, and day care expenses, if needed. The starting point for the calculation is the income of both parents.

Generally, the number of overnights with the child or children is not equal between the parties. The court still tends to discourage a 50/50 split of overnights, because of the need of the child or children to have a place they can call “home.” A typical split is 60/40, with one parent having 60 percent of the overnights and the other 40 percent. Naturally, the parent with the larger percentage of overnights will incur the greater costs simply because of the increased presence of the children in the home. Therefore, the non-custodial parent (the one who has fewer overnights) likely will wind up paying a bit more in child support to the custodial parent to make up the difference.

Regardless of the child support calculations, children are entitled to spend time with each parent. Even if one parent is not paying his or her child support, the other parent must be allowed to continue to spend time with the child according to the Parenting Plan and time share arrangements upon which the parties agreed and the court ordered.

On the flip side, a parent ordered to pay child support must continue to do so even if the other parent withholds time-sharing.

While both of these rules may seem unfair to a parent who is either 1) not receiving financial support from the other parent as ordered, or 2) is not being permitted by the other parent to see the child as set forth in the Parenting Plan, the reason for this requirement is that the state has mandated it is the right of the child to receive support and the right of the child to spend time with each parent—that the child is not to be penalized for because the parents are struggling to resolve their issues.

The remedy in either case, of course, is to petition the court for enforcement.

One big issue over the past few years, since the start of the recession, has been modification. If one or both parents have either lost their jobs or experienced underemployment (like a reduction in hours or having to take a lesser paying position than previous positions), they may petition the court for modification of child support.

However, the petitioning party must be able to provide evidence of “a substantial and material change in circumstances” in income. If the court finds the petitioning party ischoosing to take a lower paying position, or even to not work, because he or she does not want to pay child support, it likely will not be persuaded to modify its previous order.

Over the past several years, Florida has attempted to become more progressive in matters of child support and time-sharing. No longer do we use the language “primary custody,” “secondary custody” and “visitation,” since such language tends to imply one parent is more important in the child’s life than the other. Today, we use terms like “time-sharing,” “shared custody” and “co-parenting,” which suggest a more congenial arrangement between the parents.

Also, no longer is it the case that the mother is viewed as the preferred primary parent, with the father participating largely as the financial provider. These days, it is more likely the parents will share both the financial responsibilities and the custodial responsibilities equally, hopefully, with a better outcome for both parents and child.

If you are the parent of a minor child or children, and you are considering divorce, or if you and your spouse have already divorced, but you’ve experienced a substantial change in circumstance and need to modify child support, contact our offices today to schedule an appointment to discuss the particulars of your case. Sandy Ambrose has more than 30 years experience working with divorcing families, and she will be glad to answer any questions you may have regarding these issues.