Boca Raton Divorce Lawyer Blog

Failing to pay a court ordered child support obligation can land the non complying parent in jail. However, there are certain procedures that must be followed before incarceration can occur.

An order of civil contempt for failure to pay child support requires findings of wilful failure to pay ordered amounts. If incarceration is to be orderd as a result of finding wilful contempt, the court must then make the affirmative finding that the contemnor possessses the present ability to comply with the purge. Miller v. Murrah, 14 So.3d 1019 (Fla. 5th DCA 2009); Brown v. Brown, 658 So.2d 627 (Fla. 5th DCA 1995).

The key too these cases requires that an order be in writing, and that these findings must be clearly set forth in the order. Alan R. Burton, Esq. is well qualified to assist you in preparation of appropriate orders for this purpose.

Todd Alan Grant was successful in securing his release from custody after having been jailed for non-payment of support. In his case, there was never a written order entered, and he was promptly released. Grant v. Department of Revenue on behalf of Heather R. Kopp, 27 So.3d 190 (Fla. 5th DCA 2010).

Rafael Carbonell had much the same luck as Mr. Grant. He was also incarcerated for non-payment of support, but upon filing an appeal, he was also promptly released. The order which had him jailed failed to make the specific affirmative finding that he had the present ability to comply with the purge amount as set by the court. Carbonell v. Department of Revenue on Behalf of Deydry Capella, 30 So.3d 664 (Fla. 5th DCA 2010).

If in fact there is wilful noncompliance with a child support order, it is incumbent upon the trial judge to be meticulous in his or her findings. The order directing incarceration must be carefully drafted if it is to withstand any subsequent attack.

In a case recently decided, a wife was awarded an astounding sum of $75,000.00 per month for temporary support for herself and her child. Stanton v. Stanton, 2D10-919 (2010).

The appellate court said this amount simply could not stand, as the amount was not supported by competent substantial evidence.

The trial court should consider the standard of living in addition to the need of one spouse and the other spouse's ability to pay. de Gutierrez v. Gutierrez, 19 So.3d 1110, 1113 (Fla. 2d DCA 2009).

Here, in this case, the wife had testified that her monthly expenses totaled $44,029, including those of her child. Her financial affidavit also indicated her monthly expenses to total $44,029. It was clear to the appellate court that the trial judge had erred in making an award of $75,000 per month for the wife when the evidence reflected that the wife's needs were $44,029. Also CLICK HERE to visit my site for the most updated information on the new alimony laws in Florida.

The appellate court gave further instructions to the trial court that the award to the wife must be based upon her needs, and should not attempt "to fund the enjoyment of every
little luxury enjoyed before divorce." Levine v. Levine, 964 So.2d 741, 742-43 (Fla. 4th DCA 2007).

The purpose of alimony is to provide for the less wealthy spouse above bare subsistence levels, not to fund the enjoyment of every little luxury enjoyed before divorce. "Fixing alimony at a profligate standard of living is to turn alimony into a lottery. That is one reason why the standard of living during marriage is not a super factor trumping all other factors in awarding alimony. Jaffy v. Jaffy, 965 So.2d 825, 828 (Fla. 4th DCA 2007).

Although the sum of $44,029, awarded to the wife on a monthly basis was certainly not a nominal amount, this case still clearly points out that the standard for temporary relief is clearly the needs of the requesting spouse versus the ability of the other spouse to meet those needs.

The question of payment for private school tuition comes up frequently during the divorce process. Can this obligation be continued after the divorce, so that the child can continue on with his or her private school enrollment?

The answer to this question depends upon the circumstances existing during the marriage.

In Wilson v. Wilson, 559 So.2d 698, 700 (Fla. 1st DC 1990), it was stated that the court may order a non custodial parent to pay for private education expense if it finds that" the parent has the ability to pay for private school" and the "expenses are in accordance with the family's customary standard of living and are in the child's best interest."

This legal premise was clearly set forth in Luskin v. Luskin, 492 So.2d 783 (Fla. 4th DCA 1986). In Luskin, the trial court denied the wife's request to compel the husband to pay for the children's private school tuition and camp expenses. On appeal, the decision was reversed. The appellate court held that the trial court had applied the wrong legal standard to the payment of these expenses. The proper standard, as stated by the court, is a balancing of "needs as fixed by the parties' standard of living, on the one hand, and ability to pay, on the other."

In Luskin, the husband had the ability to pay private school tuition and summer camp costs, and these expenses were in accordance with the family's customary standard of living and were in the children's best interest. Accordingly, the court could order these payments as further support for the children.

However, if payment for tuition for private school, or payment for camp is to be sought, it is very important that the person requesting these payments clearly state so in his or her respective pleadings. Failure to formally plead such a request, even if it is within the customary budget and best interests of the children, will in fact result in a denial of that obligation being paid. In other words, if you don't ask for something, you will not be entitled to reecive it. See Gelman v. Gelman, 24 So.3d 1281 (Fla. 4th DCA 2010).

Florida has a very strong policy in favor of support for minor children. Even when a parent has no actual income, the courts do not hesitate to impute income to that parent.

Section 61.30(2)(b) governs the imputation of income for purposes of child support: "Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found by the court to be voluntary on that parent's part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community......."

In the case of McCall v. Martin, 34 So.3d 121 (4DCA 2010), the father was on his way to prison for domestic battery against his wife. The trial court would not establish any child support obligation since the husband would have no income in prison. On appeal, the decision was reversed.

The appellate court stated that a child's best interest is certainly not served by refusing to set an initial amount of support based on imputed income for a parent about to be imprisoned.

The appellate court further stated that income shouild be imputed to the father so that arrearages can accumulate until he is able to earn an income. When his release occurs, the court should establish a payment plan to reduce arrearages according to his earning ability, setting a payment plan.

The Florida Supreme Court has also previously addressed this issue. The court has stated that "an incarcerated parent may not automatically have his or her child support payments obligations modified solely on a reduction of income resulting from incarceration. Dep't of Revenue v. Jackson, 846 So.2d 486, 494 (Fla. 2003).

The highest court in Florida went on to states "If trial courts were permitted to suspend an incarcerated parent's obligation to pay child support, the supported child would never receive the benefit of the support payments to which the child was entitled. Therefore, the child's best interests are certainly best served when courts do not modify an obligor parent's child support payments simply because of the parent's incarceration."

For further understanding of this concept, one should also read the decision of Mascola v. Lusskin, 727 So.2d 328, 333 (Fla. 4th DCA 1999). In this particular case, the payor parent attempted to kill the child's mother, and off to prison he went. The court stated that "although his incarceration may relieve him from the use of contempt to coerce payment, that is no cause to reduce the amount of support where the failure to ay results from the payor's voluntary conduct."

Child support is clearly an entitlement for a child, and that entitlement is well protected by our courts.

The payment of child support can put even more stress on an already difficult situation for many people today. The economy has taken an obvious downturn for many, many people. In spite of the economic crisis, children depend on the support for their wellbeing.

Trying to keep current on support obligations is no easy task, but the ramifications of not keeping up can be significant. Delinquencies can subject one to the loss of a driver's license, professional license, or even the loss of their freedom, if the non payment is intentional and willful.

South Florida, Boca Raton, Fort Lauderdale are all areas in South Florida that feel the impact of the economy on the payment of child support. The Department of Revenue, the agency responsible for the collection of support, witnesses first hand the difficulties experienced by many in collecting child support in a difficult economy. A recent story appeared in the Sebring, Florida area that dealt with this very issue. You can read the story from the Tampa Tribune, and specifically their on line site.

No. Child support is a benefit and entitlement for a minor child. Under Florida law, a parent does not have the legal right to waive the receipt of child support. Also, a parent does not have the unilateral right to determine how much he or she wants to pay, nor can the recipient parent due the same thing. Any agreements which purport to do so are against the public policy in the state of Florida and are unenforceable.

There are many, many cases which deal with this very issue. Just a few to read which are instructive, are as follows: Lester v. Lester, 736 So.2d 1257 (Fla. 4th DCA 1999); Strickland v. Strickland, 344 So.2d 931 (Fla. 2nd DCA 1977; Brock v. Hudson, 494 So.2d 285 (Fla. 1st DCA 1986); and Warrick v. Hender, 198 So.2d 348 (Fla. 4th DCA 1967).

The amount of child support to be paid is determined by statute in Florida. This section is known as the child support guidelines in Florida, and is found under in Florida Statue 61.30. The judge assigned to your case is going to make certain that a "Child Support Guideline Worksheet" is filed in your case, and that the appropriate amount of child support, as required by law, is being paid.

The new child support statute in Florida does have significant changes from previous versions. The statute takes into consideration credits or reduction as to the amount required to be paid as a result of "substantial time sharing".

Substantial time sharing, as that term is defined under Florida law, would be any amount of overnight time with the children in excess of 20% of the year, or at least 73 overnight visits throughout the course of a year.