Child Support

April 7, 2020

Should Children be Allowed to Testify in a Florida Divorce Case?

SHOULD CHILDREN BE PERMITTED TO TESTIFY IN A CUSTODY CASE?

One of the most common questions we get is if children can or should be allowed to testify in a divorce or child custody case. Self-represented litigants in Florida occasionally come to court with a child in anticipation that the child will testify for them. However, there are specific prerequisites that must be followed under the Florida Family Law Rules of Procedure before a party is permitted to bring a child to court to testify. Often clients ask “At what age can my child testify in a Florida divorce case?’ Why maturity can be an issue, age itself is not the main factor use to determine if a child can testify in a divorce case. It is not prudent for a party to bring a child to court unless authorized previously by court order. Florida Family Law Rule of Procedure 12.407 applies to the testimony of children in Family Law Cases. It reads as follows:

(a) Prohibition. Unless otherwise provided by law or another rule of procedure, children who are witnesses, potential witnesses, or related to a family law case, are prohibited from being deposed or brought to a deposition, from being Family Law Rules of Procedure August 28, 2019 99 subpoenaed to appear at any family law proceeding, or from attending any family law proceedings without prior order of the court based on good cause shown.

(b) Related Proceedings. In a family law proceeding held concurrently with a proceeding governed by the Florida Rules of Juvenile Procedure, the Florida Rules of Juvenile Procedure govern as to the child’s appearance in court.

(c) Uncontested Adoption. This rule does not apply to uncontested adoption proceedings. Florida Family Rules of Procedure 12.407.

November 7, 2018

Alimony and Child Support In Florida

by David M. Goldman

That dreaded word in a divorce: Alimony. Alimony is determined by the court after looking at one party’s actual need versus one party’s ability to pay. After equitable distribution is determined, the court reviews what money is left over, if anything, and considers the parties’ circumstances to come up with a fair award. Some questions to answer:

Length of the marriage
Standard of living the parties are accustomed to

October 5, 2018

Child Support in Florida: Working Overtime or Second Job

by David M. Goldman

When parties come to family court in Florida for paternity, dissolution of marriage, or child support proceedings, income of the parties can become very important in calculations and is examined closely. There may be certain situations where one parent is working overtime to make additional money, whether it be to pay support or to supplement income because of a lack of support being received. Can working overtime be a problem in your family court case?

Florida Statute § 61.30(2)(a) indicates that gross income shall include, among other things, bonuses, commissions, allowances, overtime, tips, and other similar payments. Child support will be calculated from net income, so it is important to get all allowable deductions as accurate as possible. For purposes of child support, the court must impute income to a voluntarily unemployed or underemployed parent unless the lack of employment is the result of the parent’s physical incapacity or other circumstances beyond the parent’s control. The court has to state the exact amount of gross income it is imputing to a parent. See Shrove v. Shrove, 724 So.2d 679 (Fla. 4^thDCA 1999). Regular overtime or second-job income is included unless the court specifically finds that the opportunity to earn overtime will not be available as an income source in the future. See Butler v. Brewster, 629 So.2d 1092 (Fla. 4th DCA 1994).

Therefore, it can be possible that overtime and second-job income can be used to calculate child support and the court won’t make a finding that the income source will not be available as an income source in the future, making child support higher or lower depending on the circumstances. Contact an experienced Jacksonville Family Law Attorney with the Law Office of David M. Goldman, PLLC for a consultation.

August 9, 2018

Can Monetary Gifts From Family Be Considered Income for Alimony or Child Support Calculations in Florida?

by David M. Goldman

In some marriages, a spouse’s parents may supplement the family income with monetary gifts, which may be an issue later on if the husband and wife divorce. Can one spouse argue that the other spouse will have higher income due to the monetary gifts from family members thereby raising alimony and child support payments? According to Florida law, it depends.

In Oluwek v. Oluwek, 2 So.3d 1038 (Fla. 2^ndDCA 2009), Jonathan Oluwek, the husband, appealed an amended final judgment of dissolution of his marriage to Linda Oluwek, the wife. The trial court imputed $1500 per month contributed regularly by the husband’s parents to husband for alimony and child support. The husband argued the trial court erroneously imputed the $1500 per month as income to the husband. The record indicated his parents made regular monthly payments of $1500 over the last five years of marriage.

The Oluwek court held that as a general rule, the trial court may not consider financial assistance from family or friends in determining a party’s ability to pay alimony or child support. However, there is an exception that allows the court to impute income based on gifts “if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.” In Vorcheimer v. Vorcheimer, 780 So. 2d 1018 (Fla. 4^thDCA 2001), the appellate court held that the trial court erred by imputing $1500 to the husband as income where there was no evidence that the payments would continue. The $1500 payments had been made on a monthly basis for twelve years, but the husband’s father testified at trial that he had stopped making the monthly payments and would not make them in the future. The court distinguished that case from Ordini v. Ordini, 701 So.2d 663 (Fla. 4^thDCA 1997), in which regular monthly payments from the husband’s parents continued through trial and the husband’s mother testified that she would continue to make them in the future.

June 8, 2018

Paternity in Florida: Who Pays For Birth Expenses?

by David M. Goldman

For any father who is involved in a Florida paternity action, it can be overwhelming to learn that you may have to pay not only child support, but retroactive child support and birth expenses for the child. Is there any way to limit the cost of what has to be paid to the mother for the time period prior to the paternity ordered being entered? The answer is: it’s possible.

Florida Statute 742.031 provides that in a paternity action, the court shall order the father to pay moneys sufficient to pay reasonable attorney’s fees, hospital or medical expenses, cost of confinement, and any other expenses incident to the birth of the child and to pay all costs of the proceeding, if appropriate. The statute provides that bills for pregnancy, child birth, and scientific testing are admissible as evidence without requiring third-party foundation testimony and shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child.

Where it can be tricky is what is “appropriate” as defined in the statute? In Dustan v. Weatherspoon, 505 So.2d 23 (Fla. 3^rdDCA 1987), there was an appeal of a paternity action’s child support order. The mother alleged that the trial court abused its discretion in failing to require the child’s father to pay any portion of the expenses incidental to the birth of the minor child. The appellate court agreed with the mother. The court stated: “These rather minimal child support requirements seem to us the least that a father should be expected to do for his child, providing, of course, the father can afford it.”

January 4, 2018

Using Income Withholding Orders to Secure Child Support and Alimony Payments in Florida

by David M. Goldman

You may be tired of receiving child support or alimony payments late or not at all, and you would like to be paid directly from the employer of your ex-spouse or child’s father/mother. Florida Statutes 61.1301 provides that an income deduction order can be entered once there is an order of alimony or child support by the court. The income deduction order must be issued by separate order.

There is a federally approved and required Income Withholding Order “IWO” that will allow you to garnish income for child support and alimony. See 42 U.S.C. 666, Social Security Act. Arrearage of child support can be withheld also and the employer/income withholder is given instructions on how much to withhold until full payment is made.

There are very clear rules about the IWO, and an IWO may be rejected and delay payment if not completed properly. The employer must reject the IWO and return to the sender if the IWO instructs the employer/income withholder to send a payment to an entity other than a state disbursement unit, which is a centralized facility for collections and disbursement of child support payments. Another reason the IWO must be rejected is if the form does not contain all the necessary information to comply with the withholding. The IWO must include a dollar amount as the amount to withhold and must include a copy of the underlying order. In addition, the correct Office of Management and Budget “OMB” approved form must be used or it will be rejected.

April 13, 2017

Child Support Contempt

by David M. Goldman

Child Support Contempt is a common issue with Jacksonville Family law and divorce cases. When it comes to child support, often child support contempt motions are part of the norm. As a Jacksonville child support attorney and family attorney, I have found that frustrations regarding child support are present on both sides. Parents that receive child support are often bothered when the paying parent fails to make child support payments. The parent required to pay child support is often frustrated when he or she can’t afford to make the payments. Child support contempt proceedings usually come up at some point in these situations.

The Issue if Non-Payment and What to Do About It

Failure to pay child support gets the receiving parent charged up. This often leads to motions for child support contempt. Once the motion for child support contempt has been filed and scheduled for a hearing, the filer has to prove two things at the hearing. First, he or she must prove that there is a valid order from the court requiring the other parent to pay. Next, he or she must prove that the other person has failed to pay as required in the child support order while having ability to pay. Ordinarily, these two things are easy to prove. The court’s records will, of course, contain proof that there is a valid child support order. Next, the child support payment history will show a lack of payment.

February 23, 2017

Child Support, Gross Income Matters

by David M. Goldman

Money and finances in divorce and related cases are rarely, if ever, at the very top of a judge’s list of important issues, but child support calculations are important. For the most part, calculating child support is a simple as running the numbers through a formula set out by Florida law. Where child support calculations can be tricky is when there is a dispute over what numbers are to be used in the child support calculation. In general, child support is determined by taking each side’s gross income (monthly), then subtracting certain allowable deductions to reach the net monthly income. The net monthly income is then used to calculate child support based on the number of children and other factors.

Gross Income

Clearly, getting each party’s income correct is an important first step. Chapter 61 says income is “any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government. United States Department of Veterans Affairs disability benefits and reemployment assistance or unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support.”

Recently, the Third District Court of Appeals, in the case of Schafstall v. Schafstall, affirmed a trial judge’s decision to include in kind payments as gross income. Specifically, the court included, as gross income for the Former Wife, $1300 that the Former Husband paid toward her mortgage and $250 her mother paid toward her phone bill each month. The Former Wife argued that neither should have been included in the trial court’s calculation. However, the appellate court pointed out that F.S. 61.30 mandates that reimbursed expenses or in kind payments be included if they reduce living expenses. Any payments that come from any person will typically be included as gross income. In the Schaftall, case the appellate court pointed out that the evidence the trial court considered was enough to support the decisions that were made regarding income used to calculate child support. Continue reading

April 29, 2016

Child Support in Florida

by David M. Goldman

Child support is a major issue in family law. Child support is part of divorce cases and paternity cases. Even dependency cases can have child support issues involved. As a Jacksonville child support lawyer, I have handled many cases involving support from both sides. The person receiving child support and the person paying child support typically just want an amount that is fair. Child support cannot be bargained away by the parents, as Florida law is clear that the right to child support belongs to the child and not the parents.

One child support issue that comes up sometimes is created by the scenario where the parent that has the child the majority of the time is not working. This issue comes up a lot more in paternity cases, but can be present in a divorce case, as well. Chapter 61, Florida Statutes and case law control how child support is handled. Florida law allows for income to be imputed to a person that doesn’t have a job or other source of income. The person paying support often is bothered that he or she is required to work and pay child support, while the recipient of child support sits at home and does nothing. In this situation, the court will sometimes treat the non-working parent as if he or she was working and use money that could be earned working 40 hours per week at minimum wage. Income can also be imputed to the person required to pay child support, even if he or she has no actual income.

Child support is based on a formula where each person’s earnings are used to produce an appropriate child support amount. So a parent without employment will be treated as if he or she is earning approximately $1300 per month in net income, rather than using $0 as his or her monthly income. Normally, this will decrease the amount of support due from the person paying child support. However, Florida law also allows the court that is imputing income to a non-working parent to consider what, if any, amount child care would cost in order for the person to work full time. The cost of childcare is high, and it will increase the overall child support number.

October 21, 2015

Florida Family Law: Trusts and Support

by David M. Goldman

Trusts have long been a tool used in asset protection and estate planning to protect property and income. But what if a person seeks to use a trust as a shield to protect a trust beneficiary from making support payments in family law cases? The answer is not necessarily straight forward, but depends on the circumstances and the terms of the trust. However, Florida trust law makes it possible for a trust to be used to provide support to a trust beneficiary’s dependents. This is limited to child support or spousal support and is only considered when there are no other alternatives to receiving the support that is sought. The person seeking to attach a trust’s distributions to a beneficiary must demonstrate to the court that certain factors are present that justify going after the trust. A trust’s spendthrift provision will not defeat a garnishment for support of a dependent.

Recently, the 2nd District Court of Appeals, in Berlinger v. Casselberry, upheld a trial court’s order issuing a continuing writ of garnishment against any future disbursements from a trust for the ex-husband’s benefit after the ex-wife filed a motion for contempt and requested a writ of garnishment. In this case, the ex-husband was ordered to pay a substantial amount of alimony per month. The ex-husband stopped making the alimony payments, but lived a lavish lifestyle with his new wife. The couple lived off a trust set up for the benefit of the ex-husband, who had attempted to hide the trust. After the ex-wife discovered the trust, she requested the writ of garnishment, which the court granted.

The State of Florida holds spendthrift provisions in high regard and will respect them, generally. However, the State’s policy as it relates to a person’s obligation to support his or her dependents is of higher interest to the State of Florida. For more information on trusts or family law issues, contact the Law Office of David M. Goldman, PPLC. Initial consultations are free.