Florida Family Lawyer Blog

Many children in the Miami, Fort Lauderdale and Palm Beach areas are raised by single mothers and many of these children’s parents were never married. Florida law requires both parents to financially support their children, and unmarried mothers and fathers who are custodial parents are entitled to financial support from the other parent.

If you are an unmarried custodial parent in South Florida, you can obtain child support through a Judicial Court Order or an Administrative Order. These orders can be obtained through the assistance of a family law attorney or via assistance from the Florida Department of Revenue’s Office of Child Support Enforcement. In many cases, you will need to establish paternity if the non-custodial parent is the child’s father. This can be accomplished in many ways: by producing the child’s birth certificate listing the father as the biological father of the child, a registration on the Florida Putative Father’s Registry, a signed affidavit of both parents or a judicial or administrative order declaring who the father of the child is. In a disputed paternity case, the court may require genetic testing.

Section 61.30 of the Florida Statutes sets out guidelines for the calculation of child support. The amount of child support awarded is based on the number of children in question and the combined net income of the parents. The child support obligation is then divided between the parents in direct proportion to their income or earning capacity. The parent with whom the child lives most of the time (the "custodial" parent) is paid support by the other parent (the "non-custodial" parent).

For example, if Jane Doe of Fort Lauderdale and John Smith of Aventura have a child outside of marriage and the child lives with Jane in Broward County, Jane’s attorney can petition the court for an order granting her child support. The judge who determines the amount of child support will add Jane and John’s income together to determine the amount of total financial support the chills is entitled to. If Jane makes $30,000 and John makes $70,000 a year, the judge will rule that John must provide 70% of the child’s financial support. If, for instance, the judge rules the child is entitled to a total of $2,000.00 in support per month, John must pay Jane a total of $1,400.00 a month in child support.

If you are an unmarried mother in the Miami, Broward or Palm Beach area, you are entitled to receive financial support from your child’s father. The family law attorneys at Koch & Trushin can help you navigate this process and protect your child’s financial rights. Please feel free to contact us for a free initial consultation.

Posted by Koch & Trushin | Permalink | Email This Post

Posted In: Child Support

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Many couples going through divorce find solace in playing the blame game—“I am getting a divorce because my spouse did this, that, and the other!” But just how far can that get you? In Florida, it probably won’t get you that far, and placing blame on your spouse, who is a party to your divorce proceeding, simply may not be relevant. That is because in cities like Fort Lauderdale, Florida, and in the state of Florida in general, divorces are based on a “no fault” premise. The Florida legislature, like in many states through the country, has essentially made the “fault” inquiry during a divorce proceeding obsolete because it allows either party to seek divorce without a showing of cause. In Florida, the magic words to plead in your petition for divorce are that the marriage is “irretrievably broken.” Pleading “my husband cheated on me (adultery)” will likely get you nowhere!

That being said, conduct such as adultery, which may in fact “cause” one party to initiate a divorce, can impact other determinations raised during the divorce proceeding itself. Easily stated, fault may not be grounds for divorce in Florida, but it may be relevant to other determinations the court may be forced to make. Specifically, in Florida, one party’s adultery may have significant implications for divorces that include child custody battles, equitable division of marital assets, and distribution of alimony. In our next blog entry (Part II), we will discuss how fault may affect the latter two categories. But for now, we will address how a party’s “fault” may impact child custody battles that increasingly occur during dissolution proceedings.

In child custody battles throughout Florida, before the court determines which parent should obtain custody of the child, the court must consider the “moral fitness” of a parent and what is in “the child’s best interests.” For this step, the court may consider both parent’s sexual conduct and whether the conduct had or is reasonably likely to have an adverse impact on the child. If adultery or marital misconduct is likely to have an negative effect on a child’s best interests, that court may take it into consideration when making its decision. Please notice the limitations of this standard, however. While the court is allowed to consider a party’s adultery or marital misconduct, such conduct will not necessarily establish that a parent is unfit to obtain custody. While other factors may be considered, and the determination of custody is within the sole discretion of the court, the scales may tip against an adulterer if adultery has a negative effect on the child. But even if the court determines that a parent’s adultery has had an adverse effect on the child, other factors, such as, cruelty, neglect and parental unfitness exhibited by the other parent may be present to tip scales back in favor of award of custody to the adulterous parent.

As Florida’s case law makes emphatically clear, what is in “the child’s best interests” is an extremely fact-sensitive inquiry. If the court does decide to base its decision to award child custody to one parent and not the other due to a party’s marital misconduct or adultery, that finding must be thoroughly explained on the record. If you are going through a divorce due to your spouse’s marital misconduct, and you believe that it has negatively affected your child, remember, the best advice would be to consult you divorce lawyer to discuss how to properly obtain custody. Please stay tuned for our next blog entry which will discuss how a spouse’s marital misconduct may affect the equitable distribution of assets and alimony awards.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Custody , Child Support , Equitable Distribution , No Fault Divorce

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In Florida, paternity may be established through statutory action governed by the Florida Family Law Rules. Pursuant to Florida Statute, any woman who has a child out-of-wedlock may bring proceedings against an alleged biological father in one of Florida’s circuit courts to establish paternity. In this action, the mother must assert facts demonstrating paternity. Chapter 742 of the Florida Statutes dictates that paternity must be established by clear and convincing evidence either through the father’s open acknowledgement via sworn affidavit or through scientific tests that are generally acceptable within the scientific community to show a probability of paternity. If the mother successfully alleges facts establishing paternity, and the circuit court determines that alleged biological father is, in fact, the real father of the child, upon its discretion, the court may order the father to pay child support. In such a situation, the mother most likely will demand retroactive child support—that is, monetary support owed for previous years of unpaid child support. While the state of Florida allows the courts to award retroactive child support, the Legislature has placed severe limitations on just how far back the court is allowed to go when granting such an award.

While it is true that Florida courts have adhered to the proposition that passage of time excuses a parent from child support obligations, with Florida Statutes § 61.30(17), the Florida Legislature makes clear the court can only exercise its discretion to award retroactive child support for up to 24 months (2 years) prior to the date of a mother’s petition for paternity, child support, or both—abrogating the common law right that a child was entitled to support retroactive to the date of birth! Therefore, the maximum amount of back pay that a father will be required to pay in child support, assuming paternity is established, is a 24-month value of child support. Furthermore, retroactive child support, in every case, is computed pursuant to the traditional child support guidelines as applied to the parents’ actual incomes during the retroactive period. Additionally, the court should consider an installment payment plan for the payment of retroactive support.

Consider the following situation: Man and Woman met in 2004, had a very brief relationship that lasted several weeks, and they never spoke again. In 2008, Woman comes knocking on Man’s door, informing him that when they were together 4 years before, she got pregnant and had a child. Soon thereafter, Woman initiates an action in circuit court to establish Man’s paternity of the child. As it turns out, Man is the father and the court orders him to pay child support. In this situation, it is important to realize that child support is a right which belongs to the child, and that support is a dual obligation by both biological parents. That being said, the court, in its discretion, is only allowed to award retrospective child support for up to 24 months before Woman initiated her paternity action. Therefore, in this example, Man would only be responsible for the past 24 months of child support and for future child support, which is determined by the parents’ actual incomes during that period of time.

If you have questions concerning your duties as a biological parent for payment of retroactive child support, consult an attorney for additional advice.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Support , Establishing Paternity

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In these uncertain financial times, the specific terms of a child support agreement within a divorce settlement has become even more important than before. One important factor that parties to a divorce may forget, or may not even think to mention, is payment of their child’s college education. In today’s society, undoubtedly driven by education, a college degree has become the pinnacle of entering Florida’s workforce. Recognizing this, many Floridians decide to help pay for their child’s college education upon graduation from high school. However, when a child’s parents are going through a divorce, and child support obligations are being mentioned by both parties, the question of who must pay for a child’s college education is a matter that should be discussed.

Florida statute mandates that a parent is not legally obligated to support his or her child beyond the age of 18, the age of majority, unless the parent agrees to get around this by signing a binding contract or unless some type of statutory exception applies pertaining to a child’s disability or dependency. With the statutory exceptions, a parent may be required to support a dependent child where: (1) dependency is caused by mental or physical incapacity which occurred before the child reached 18; or (2) the child is “dependent in fact,” meaning that he or she is between the ages of 18 and 19, is currently enrolled in high school, and has a reasonable expectation of graduating before 19. Absent a court order, binding contract, or these two statutory exceptions, the obligation to pay the current child support for a child, including payment for secondary education upon completion of high school, is terminated when the child reaches the age of 18.

Where exactly does that leave a child of parents going through a divorce that just graduated high school, is 18 years of age, and needs financial support from his parents to attend college in his hometown of Fort Lauderdale, Florida? As stated previously, if a child is no longer “dependent” upon his or her parents, either through age or disability, a parent simply has no absolute duty to provide a child financial support, which unfortunately includes paying or helping to pay for an adult child’s college education. If you are a parent going through a divorce, and are worried about paying for your child’s college education, the best thing to do is to bring up the topic in preliminary discussions between the parties. Although a parent is under no legal obligation to provide support a child over the age of 18, the age of most college students, it is important to note that the support agreement may require a parent to pay support beyond the age of 18. Through contract, one parent may require the other parent to pay and be solely responsible for a child’s college education, thereby obligating that parent to pay reasonable costs associated with it. The exact terms should be stipulated in the contract. If the support contract fails to address this matter explicitly, the court is unlikely to honor the request. Getting around this failure would require one parent to make a motion to the court requesting a change to the terms of the support obligations within the divorce settlement agreement to include a provision for college education support. However, the decision to grant this motion is within the court’s discretion. The wiser route would be to include such a provision within the original divorce settlement agreement binding both parties to its contractual terms.

If you are going through a divorce and are concerned about your child’s financial support for his or her college education, please consult an attorney for more information.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Support , Divorce

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It’s a simple fact that after divorce, circumstances between parties tend to change. A former husband and wife who have a 10-year old child together and went through a divorce 3 years ago, and obtained a child support order at the conclusion of their dissolution proceeding are in a different place in their lives and might even be earning substantially more or less money years later. This exact situation calls into question the appropriateness of a child support award that was based on parental income from three years ago. One of the most common issues family law practitioners deal with is the modification of child support orders. When awarding child support, Florida courts follow rigid guidelines to determine the income of each parent, how much each party can contribute, and allocating a support award based on total income, the proportional contribution of each parent to that income and the number of children the parties have together. Here is Florida’s Child Support Guideline Worksheet to get a clearer picture. However, because years may pass, and circumstances may change, Florida courts allow a party to petition for a modification of child support, but to do so that parent must plead that there have been substantial changes in circumstances in the payor parent’s income after the original order of child support was awarded.

The first step in a petition to modify a child support order based on a significant change in circumstances is to file a supplemental Petition for Modification of Child Support with the same court that entered your original child support order. A sample can be found here. The Florida Child Support Guideline Worksheet provides an exact estimate of monthly support a parent must pay depending on total income of parents, the proportional contribution of each parent to that income, the number of children they have together, and other individual circumstances. Information you will need to complete this form includes but is not limited to proof of monthly incomes, insurance information, proof of expenses and child care information. A situation warranting a modification of child support obligations may be the result of one party’s significant change in income. For example, if a non-custodial father in Fort Lauderdale, who was previously ordered to pay his ex-wife a specified amount of child support as per the Florida guidelines, incurs a dramatic increase to his income, the ex-wife may petition the court for a modification of child support because total parental income is the primary factor utilized by the Court when determining the amount of child support required. Therefore, the father’s significant increase in income has thereby increased the total income of the parents.

At the outset of this petition, it is important to note that the court will limit its ability to modify your child support order. This limitation is based on total parental income and significant changes that have been made thereto. A substantial change in circumstances based on change of income may be demonstrated where the party seeking the modification is able to prove the other parent’s income increased to such a degree where the difference between the existing monthly obligation and the amount provided for under the guidelines has changed by at least 15% or $50, whichever of the two is greater. If this qualification is not met, a change in income will not be proof of a substantial change in circumstances.

In modifying the child support obligation, the court will continue to use the child support guidelines to determine the new amount that should be awarded. Because the amount of monthly financial need is based on Florida statutes, the court will still take into account the total financial income of the parents and the number of children to reach the figure. If you wish to modify your spouse’s child support obligations due to his or her substantial increase in income, please consult an attorney.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Support

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In this previous post, we discussed Alex “A-Rod” Rodriguez’s pending divorce to his estranged wife, Cynthia, and the effects of a prenuptial agreement on her request for an equitable distribution of the marital assets. And, throughout the summer, the general public was kept riveted as to what would happen next and whether they would be privy to another bitter divorce proceeding involving a celebrity in the Miami courts. But fortunately for the Rodriquez family, the general public will be disappointed. On September 19th, A-Rod and his wife settled the case before any court-room battle could take place. The probable reason: an enforceable prenuptial agreement A-Rod had Cynthia sign before the two got married.

A recent article from the Boston Herald explains that A-Rod and his wife choosing to settle their dissolution proceeding before it ever entered the Miami court system is most likely due to a premarital contract, or prenuptial agreement (the terms of which the public may never know!). In Cynthia’s petition for dissolution of marriage, she argued for an equitable distribution of all the assets, as is Florida law absent an enforceable prenuptial agreement. However, we are sure it is A-Rod’s position as expressed in the prenuptial agreement that Cynthia should not be entitled to half of his income – she wasn’t responsible for his notoriety as a baseball superstar nor did she add to what he already earned before the marriage. This was the precise reason for the prenuptial agreement. As the article rightly hypothesizes, in the divorce settlement reached, most likely guided by the terms of the prenuptial agreement, A-Rod probably gave Cynthia their multimillion dollar home, its contents, a lump sum, and a nontaxable alimony payment of $1.5 million dollars.

While it is all too easy to speculate about the details of A-Rod’s divorce settlement agreement, the one sure thing that is beyond speculation, and more of an absolute, is what the baseball start must pay in child support. Child support obligations simply cannot be contracted away in a prenuptial agreement, and if they are, that portion of the agreement will be unenforceable. The couple’s two children live and attend school in South Florida with Cynthia. In Florida, guidelines as to how much child support a parent is obligated to pay are set forth within the Florida Statutes and is based on a proportional formula dependent on the incomes of both parents and the number of children between them. Because A-Rod makes well over $10 thousand a month, Florida law will require him to pay $2,228.00 a month for the first $10 thousand plus an additional 7.5% of his total yearly income that exceeds $10 thousand. In Florida, if the combined monthly income between both parents of two children is more than $10 thousand, then the courts will take 7.5% of the total yearly income to determine proper child support payment. Therefore, as the Boston Herald article states, if A-Rod makes $25 million, Cynthia will receive approximately $1.875 million in child support, yearly. However, if there is a significant change in A-Rod’s income, whether upward or downward, the award of child support can be modified upon a showing by the petitioning party that there has been a substantial change in circumstances concerning A-Rod’s income warranting a modification in child support and that such a change in child support will not hurt the children.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Child Support , Divorce , Prenuptial Agreements

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In Florida, both parents have a legal duty to support their child, before and after divorce. However, when a marriage ends in divorce and children are involved, child support issues may arise. For whatever reason, whether it be out of spite, economic hardship, or ignorance of the child support order, there exists a real possibility that child support may not be timely and adequately paid. If your former spouse has failed to pay child support, there are a variety of enforcement mechanisms available to you.

Any time a former spouse has failed to pay child support, the first thing you want to do is notify the former spouse in writing as to their failure to pay. If the former spouse continues to be delinquent in their payment of child support the next step is to contact the Florida Department of Revenue at State of Florida Child Support Enforcement Website. They have numerous methods to enforce payment of court ordered child support including the following:

Suspension of Licenses: A teaching certificate or professional license may be suspended or denied because of a delinquent child support obligation. Other licenses or registrations, like fishing, driving, and hunting licenses may also be suspended or denied because of a delinquent child support obligation. If this remedy is employed, the license may only be reinstated when the delinquency is paid, a written agreement is reached, or a court grants relief.

Liens: Noncustodial parents who owe past-due support may have liens placed on their property by the Department of Revenue. If the past-due support is over $600 a lien may be placed on the obligor’s motor vehicle.

Intercept/Seize Assets: Unemployment compensation benefits may be intercepted to collect delinquent child support being enforced by the Department of Revenue. The Department may also intercept federal income tax refunds to obtain payment of past due child support. Furthermore, a Florida lottery prize of more than $600 can be transmitted to the Department when outstanding child support is due.

Contempt of Court: If a noncustodial parent does not pay his or her support on time, it violates the court’s support order issued after the dissolution of the marriage, and a judge can find the noncustodial parent in contempt of court. The judge may require that parent to pay the money owed. If he or she still fails to pay, the noncustodial parent may go to jail.

In addition, for more direct and timely action without having to deal with the sometimes slow bureaucracy of government, you can hire an attorney and they can file a Motion for Contempt/Enforcement of Child Support Order.

For whatever course you deem appropriate, it is recommended you attain a family law case history of your matter. This will detail the terms of the child support order and the payment history for your case. To attain a family law case history, simply contact the clerk of the court for your county, ask for the family law division, and request a family law case history.

For more information about enforcing your spouse’s delinquent child support payments, contact an attorney.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Support , Divorce

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