Support (Alimony & Child Support) Flashcards
1
Q
`What types of alimony can be awarded?
A
- Temporary
- Bridge-the-gap
- Rehabilitative
- Durational
2
Q
What is the first step in determining if an alimony award is appropriate?
A
In determining whether to award support, maintenance, or alimony, the court shall first make a specific, factual determination as to whether the party seeking support, maintenance or alimony has an ACTUAL NEED for it and whether the other party has the ABILITY TO PAY support, maintenance, or alimony. The party seeking support, maintenance, or alimony has the burden of proving his or her need for support, maintenance, or alimony and the other party’s ability to pay support, maintenance, or alimony.
3
Q
What factors shall the court consider in determining the proper form or forms of alimony?
A
RAE CARDS
(a) The duration of the marriage.
(b) The standard of living established during the marriage and the anticipated needs and necessities of life for each party after the entry of the final judgment.
(c) The age, physical, mental, and emotional condition of each party, including whether either party is physically or mentally disabled and the resulting impact on either the obligee’s ability to provide for his or her own needs or the obligor’s ability to pay alimony and whether such conditions are expected to be temporary or permanent.
(d) The resources and income of each party, including the income generated from both nonmarital and marital assets.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties, including the ability of either party to obtain the necessary skills or education to become self-supporting or to contribute to his or her self-support prior to the termination of the support, maintenance, or alimony award.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children whom the parties have in common, with special consideration given to the need to care for a child with a mental or physical disability.
(h) Any other factor necessary for equity and justice between the parties, which shall be specifically identified in the written findings of fact. This may include a finding of a supportive relationship as provided for in s. 61.14(1)(b) or a reasonable retirement as provided for in s. 61.14(1)(c) 1.
4
Q
Under what circumstances can the court award security to protect an award of alimony?
A
To the extent necessary to protect an award of alimony, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets that may be suitable for that purpose. The court must make specific findings that there are special circumstances that warrant the purchase or maintenance of a life insurance policy or a bond to secure the alimony award. If the court orders a party to purchase or maintain a life insurance policy or a bond, the court may apportion the costs of such insurance or bond to either or both parties based upon a determination of the ability of the obligee and obligor to pay such costs.
5
Q
How is the length of marriage determined for purposes of determining the duration of an alimony award?
A
From the date of marriage, to the date of filing an action for dissolution of marriage.
6
Q
What is a short term marriage?
A
Less than 10 years.
7
Q
What is a moderate term marriage?
A
Between 10 and 20 years.
8
Q
What is a long term marriage?
A
20 years or longer.
9
Q
What is bridge-the-gap alimony?
A
Bridge-the-gap alimony may be awarded to a party in making the transition from being married to being single. Bridge-the-gap alimony assists a party with legitimate identifiable short-term needs. The length of an award of bridge-the-gap alimony may not exceed 2 years. An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the obligee. An award of bridge-the-gap alimony is not modifiable in amount or duration.
10
Q
What is rehabilitative alimony?
A
Rehabilitative alimony may be awarded to assist a party in establishing the capacity for self-support through either: (1) the redevelopment of previous skills or credentials; or (2) the acquisition of education, training or work experience necessary to develop appropriate employment skills or credentials.
In order to award rehabilitative alimony, there must be a specific and defined rehabilitative plan included as a part of any order awarding rehabilitative alimony.
May not exceed 5 years.
May be modified or terminated based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan if the plan is completed before the length of the award of rehabilitative alimony expires.
11
Q
What is durational alimony?
A
Durational alimony may be awarded to provide a party with economic assistance for a set period of time. It terminates upon the death of either party or upon the remarriage of the obligee. The amount may be modified or terminated based on a substantial change in circumstances. May not be awarded in a marriage lasting less than 3 years. The length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.
12
Q
How does the court determine the appropriate length of a durational alimony award?
A
- May not exceed 50% of the length of a short-term marriage (under 10 years)
- May not exceed 60% of the length of a moderate-term marriage (between 10 and 20 years)
- May not exceed 75% of the length of a long-term marriage (20 years or longer).
13
Q
Under what circumstances may the court extend the term of durational alimony?
A
Under exceptional circumstances, the court may extend the term of durational alimony by a showing of clear and convincing evidence that it is necessary after application of the alimony factors and upon consideration of the following additional factors:
1. the extent to which the obligee’s age and employability limit the obligee’s ability for self-support, either in whole or in part;
2. the extent to which the obligee’s available financial resources limit the obligee’s ability for self-support, either in whole or in part;
3. the extent to which the obligee is mentally or physically disabled or has been diagnosed with a mental or physical condition that has rendered, or will render him or her incapable of self-support, either in whole or in part
4. the extent to which the obligee is the caregiver to a mentally or physically disabled child, whether or not the child has attained the age of majority, who is common to the parties. Any extension terminates upon the child no longer requiring caregiving by the obligee, or upon the death of the child, unless one of the factors applies.
14
Q
How does the court determine the amount of a durational alimony award?
A
The amount of durational alimony is the amount determined by the obligee’s reasonable need, or an amount not to exceed 35% of the difference between the parties’ net incomes, whichever is less.
15
Q
What is the appellate standard of review regarding an award of alimony?
A
Abuse of discretion.
16
Q
What cases does the new alimony law (as of July 1, 2023) apply to?
A
All petitions for dissolution of marriage or support unconnected with dissolution of marriage that are filed or pending as of July 1, 2023.
17
Q
Which party has the burden of proving need for support, maintenance or alimony and the other party’s ability to pay same?
A
The party seeking support, maintenance or alimony has the burden of proving his or her need for support, maintenance or alimony and the other party’s ability to pay support, maintenance or alimony.
18
Q
Pursuant to 61.14, what happens when the Court makes a finding that a supportive relationship has existed?
A
The Court shall reduce or terminate the alimony award upon a finding that a supportive relationship has existed. Under the old statute, it was a may. Now it is a shall.
19
Q
Who has the burden of proof when seeking to modify or terminate an award of alimony based on the obligor’s retirement and what is the burden?
A
It is the obligor’s burden to prove by a preponderance of evidence that his or her retirement reduces his or her ability to pay alimony. If the obligor meets his or her burden, the burden shifts to the obligee to prove by a preponderance of evidence that the obligor’s alimony should not be modified or terminated.
20
Q
What factors must the court consider when reducing alimony based on retirement?
A
(a) the age and health of the obligor; (b) the nature and type of work performed by the obligor; (c) the customary age of retirement in the obligor’s profession; (d) the obligor’s motivation for retirement and likelihood of returning to work; (e) the needs of the obligee and the ability of the obligee to contribute toward his/her basic needs; (f) the economic impact that a termination or reduction of alimony would have on the obligee; (g) all assets of the obligor and obligee, and each’s roles in the wasteful depletion of marital assets received by him/her at the final of a final judgment; (h) the income of the obligee and obligor earned during the marriage or after the final judgment; (i) social security benefits, retirement plan benefits, or pension benefits payable to either party following the final judgment; and (j) the obligor’s compliance with the existing alimony obligation. Fla. Stat. § 61.14(c)(2) (2023). The Court is also required to give consideration to and make written findings of fact regarding the factors set forth in 61.08 (3) when granting or denying a petition for modification based on retirement.
21
Q
When is it appropriate for a court to require security of an alimony award?
A
When the court makes specific findings that there are special circumstance warranting the purchase or maintenance of a life insurance policy or bond to secure an alimony award.
22
Q
Who pays the cost of the life insurance or bond when the court orders the purchase of same to secure an alimony award?
A
The court may apportion the costs of such insurance or bond to either or both of the parties based upon a determination of the ability of the obligee and obligor to pay such costs.
23
Q
Does 61.08 apply to temporary alimony?
A
No, temporary alimony is governed by 61.071. Therefore, the Court is not required to make the specific factual findings that it is required to make when awarding alimony at final hearing. Therefore, the formula (35% cap) likewise, does not apply.
24
Q
What is the two-step analysis for a trial court’s initial determination of alimony under 61.08?
A
First, the court makes a specific factual determination as to whether either party has an actual need and whether either party has the ability to pay alimony. Second, the court shall consider all of the statutory factors in determining the proper type and amount of alimony. Mango v. Mango 2023.
25
What is the two-step analysis for a trial court's determination of a modification of alimony under 61.14?
First, the court makes a specific factual determination as to whether there has been a change in circumstances warranting a modification of alimony. Second, the court shall consider the statutory factors. Mango v. Mango 2023.
26
Does the court need to make specific factual findings to support an award of temporary alimony?
No.
27
What is the most time rehabilitative alimony can be awarded?
May not exceed 5 years.
28
Can the amount of durational alimony be modified?
Yes, based on a showing of a substantial change in circumstances.
29
Can temporary alimony be waived by agreement?
No, as it is void against public policy. Belcher.
30
Can the court award undifferentiated support?
No. Undifferentiated support is an abuse of discretion.
31
When may a court award post judgment alimony?
Only if the court expressly reserves jurisdiction to do so in the final judgment. If the final judgment does not include an award of alimony and does not reserve jurisdiction for that purpose, then the court does not have smj to award alimony after the final judgment.
32
How is the length of marriage defined for alimony purposes?
Date of marriage, to date of filing petition to dissolve marriage.
33
What is the most common basis to appeal an alimony award?
LACK OF FACTUAL FINDINGS - litigants are REQUIRED to file motion for rehearing in order to preserve right to appeal if the basis is lack of factual findings.
34
What must be included in a FJ awarding rehabilitative alimony?
Specific and defined rehabilitative plan.
35
Must court order alimony to be paid through depository?
For alimony after 1/1/85 - it's not necessary if there are no kids or if there are kids and both parties agree not necessary.
36
If a party wants payments through depository after award of alimony, what must they do?
File an affidavit alleging default or arrearages and state request for depository & provide copy to interest parties
15 days after receipt of affidavit, depository shall notify all parties payments should be directed to depository
37
When can a party seek temporary alimony?
During pendency of DOM and even during period of time that a FJ is being appealed
38
Can the court award temporary undifferentiated support for alimony and child support?
No - this is an abuse of discretion - court has to identify amount for alimony and child support consistent with child support guidelines.
39
Do you have to plead for alimony?
Yes - include all types of alimony (temporary, bridge-the-gap, rehabilitative, durational) in your pleading if you want to request it.
40
Must the FJ for an award of alimony include language as to when the award terminates?
61.08 was modified to set forth how each type of alimony is terminated BUT in 2019, TRITSCHLER case the 2nd DCA held that a failure to identify time and manner for terminate of alimony was error on its face
41
Can the court award alimony after entry of a FJ?
Only if it reserved jurisdiction based on a potential change in circumstances.
42
If court does not award alimony and fails to reserve jurisdiction to determine alimony later, can it later award alimony
No, there is no subject matter jurisdiction to consider a later request for alimony.
43
What is an effective way for court to reserve jurisdiction to deal with alimony later if circumstances change?
Award nominal alimony such as $1 so it can later increase amount in modification, however, there is a question as to whether nominal alimony is appropriate since permanent alimony was abolished.
44
What is court doesn't provide terminate date for rehab alimony?
It is reversible error.
45
What must all FL courts find in order to award bridge the gap alimony?
Must be proven by competence substantial evidence of legitimate identifiable short terms needs and it cannot exceed 2 years
46
When would a rehab plan be inappropriate?
If the recipient spouse has no capacity to be rehabilitated - the purposes of rehab alimony is for recipient to develop skills to become self supporting.
47
If a spouse is already self sufficient at time of divorce, can rehab alimony be awarded?
It may still be awarded if the rehab plan offers a greater earning potential over course of career.
48
What evidence must a spouse put on to seek rehab award?
Competence substantial evidence that the training in the plan will increase his or her earning capacity
49
When did durational alimony become part of FL law
2010.
50
Who has burden of proof in request for alimony?
The party seeking support, maintenance, or alimony has the burden of proving his or her need for support, maintenance, or alimony and the other party’s ability to pay support, maintenance, or alimony.
51
What is standard of review concerning a recipient spouses' need?
Abuse of discretion.
52
When determining need and ability, should court be using gross or net income?
It is reversible error to use gross income COURT MUST USE NET INCOME when determining need & ability
53
Can undistributed pass through income be used as income for purposes of alimony?
Zold determined that it depends on the reasons why the funds were retained
Undistributed pass through income retained by a corporation for corporate purposes does not constitute income within chapter 61.
54
Why are undistributed pass through income retained by a corporation for corporate purposes not considered income for purposes of alimony?
Because that pass through income will be used by the corporation to maintain corporate operations and therefore cannot be used by a shareholder spouse to satisfy financial obligations imposed upon DOM. Zold.
55
Who has the burden of providing that undistributed pass through income should or should not be considered as income for alimony?
The shareholder spouse has the burden to prove that the undistributed pass through income was properly retained for corporate purpose.
56
What should court consider when analyzing if undistributed pass through income should be considered?
1. the extent to which shareholder spouse has access or control over pass through income
2.limitations governing corporate distributions to shareholders
3. purpose the funds are being retained
57
What did the Niederman case stand for?
Reiterates that all sources of income available to parties must be considered including retirement. In Niederman, Court was required to consider income the wife would receive from IRA even though she had to take steps to set up a 72(t) withdrawal plan in order to make penalty fee withdrawals prior to age 59 1/2. It put Wife's retirement into pay status to give sizeable income without invading principal.
58
What must court consider in determining if a spouse is voluntarily unemployed?
1. If employment previously existed and was terminated voluntarily
2. If unemployment is a result of spouse's failure to diligently find employment that is equivalent in income to former position
59
If income is to be imputed, what must trial court do?
Trial court may only impute a level of income supported by evidence of
-employment potential and probably earnings based on work history
-qualifications
-wages in community
60
What is TCJA?
Tax Cuts & Jobs Act
61
What year did TCJA say alimony payment no longer deductible and no longer taxable to recipient?
Starting in 2019.
62
Does the recapture rule apply?
Not after 12/31/2018.
63
Parties agree W will stay home with kids during marriage and H can afford same. Upon divorce, W wants to remain home with kids and H can afford. Is it error for court to award alimony?
It is improper if recipient spouse is able to be rehabilitated.
64
Can court award alimony to equalize financial position of parties?
It's error to do that according to Donoff 4th DCA 2006.
65
When should lump sum alimony be awarded?
1. special necessity justifying it
2. unusual circumstances which would require the non modifiable award & payor can make payment without endangering economic status
66
Is lump sum alimony an additional form of alimony?
No, rather it is a manner in which alimony is paid.
67
Can court order lump sum equitable distribution?
Yes, it is just an equalizer payment but it can't be treated like alimony or subsequently reclassified alimony to employ enforceability power.
68
Is lump sum alimony modifiable?
No - it's non modifiable, payment doesn't terminate upon death of payor or remarriage or recipient which is why special and unusual circumstances are required for such an award
69
H has a history of refusing to pay support. Can court award lump sum?
Yes - this would be an appropriate lump sum alimony award
70
Can court order lump sum rehab alimony?
Yes.
71
Is an award of life insurance or a bond standard in DOM
No. The court must make specific findings that there are special circumstances that warrant the purchase or maintenance of a life insurance policy or bond to secure the alimony award.
72
What are grounds for court to order an obligor to secure a support obligation with life insurance
There are special circumstances that warrant the purchase or maintenance of a life insurance policy or bond to secure the alimony award.
73
What are some methods of security a support award?
Purchase of or maintaining a current life insurance policy, or bond.
74
How are the costs of life insurance or a bond paid when being ordered to secure an alimony award?
The court may apportion the costs of insurance or bond to both or either parties based upon a determination of the ability of the obligee and obligor to pay such costs.
75
What is the standard of review for alimony?
Abuse of discretion.
76
What is needed in an order for alimony to sustain appeal?
Competent, substantial evidence.
77
What period of time can court consider for retroactive child support per 61.30
1. date of filing modification or 24 months before filing for an initial determination
2. the date a parent stopped exercising TS
78
The court entered a final judgment (in Feb. 2016) which did not award child support, but provided that either party could file a motion to seek child support without having to prove a substantial change in circumstances. In October 2016, the former wife filed her motion seeking child support and the magistrate granted the motion retroactively to the Feb. 2016 final judgment. Was it error to award retro to Feb 2016?
It is error to award retro for a period of time before the filing of mom's motion
79
What is UIFSA?
Uniform Interstate Family Support Act.
80
What does UIFSA do?
It identifies parameters under which a court may establish enforce and modify interstate child support cases.
81
What does Chapter 409 do for child support actions?
It authorizes DOR to step into the shoes of the recipient of any tempt cash or title IV-E assistance made to or for the benefit of any dependent child via an assignment of rights
82
What does Chapter 742 do for child support actions?
Provides for establishment of temp child support, modification of child support and final orders of child support, disestablishment of paternity or terminate of child support.
83
How does Chapter 741 impact child support?
Allows for establishment of temp child support in DV proceeding while DV injunction is in effect
84
Can a spouse seek support without filing for divorce?
61.09 separate maintenance
If a person has ability to contribute to maintenance of his or her spouse or child and fails to do so, a spouse can apply to court for alimony & cs without filing for divorce separate maintenance
85
What must a court do if a spouse seeks adjudication of obligation to support spouse and minor child unconnected to DOM per 61.10?
A spouse living in same state apart from their spouse and minor child can obtain an adjudication of obligation to maintain the spouse and minor child - court determine alimony & child support and establish a parenting plan.
86
When can court consider support for a dependent persons beyond age of 18?
1. If court has jurisdiction, it can order support for a dependent beyond age 18 when the dependency is a result of a mental of physical incapacity which began BEFORE turning 18 OR
2. If person is dependent in fact and is between ages 18-19 and still in high school performing in good faith with reasonable expectation of graduation before age 19
87
What are the basic principles/public policy for child support guidelines?
1. Each parent has a fundamental obligation to support their minor until legally dependent
2. Child support guidelines is based on parent's combined net income estimated to have been allocated to the child as if parents still lived together
3. Encourage fair and efficient settlement of support issues and minimize litigation
88
When can court order a cs payment that varies plus or minus 5% from the child support guidelines amount?
Must consider all relevant factors
1.needs of child or children
2.age
3.station in life
4.standard of living
5.financial status of each parent
89
What must court include in order if it orders cs that varies more than 5%?
WRITTEN FINDINGS EXPLAINING WHY child support guidelines would be unjust or inappropriate.
90
When SHALL a court order payment that varies from CSG
When children spend a substantial amount of time with either parent - this applies to any living arrangement temporary or permanent
91
For purposes of CS, how is gross income defined?
"Silly Birds Bring Delicious Warm Raspberries, Perfectly Sweet In Really Rich Gardens."
61.30(2)
1. Salary or wages.
2. Bonuses, commissions, allowances, overtime, tips, and other similar payments.
3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income.
4. Disability benefits.
5. All workers’ compensation benefits and settlements.
6. Reemployment assistance or unemployment compensation.
7. Pension, retirement, or annuity payments.
8. Social security benefits.
9. Spousal support received from a previous marriage or court ordered in the marriage before the court.
10. Interest and dividends.
11. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income.
12. Income from royalties, trusts, or estates.
13. Reimbursed expenses or in kind payments to the extent that they reduce living expenses.
14. Gains derived from dealings in property, unless the gain is nonrecurring.
PUBLIC ASSISTANCE IS EXCLUDED FROM GROSS INCOME
92
For child support, what are the allowable deductions?
"Financial Families Must Manage Healthy Children’s Support."
(a) Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and income tax liabilities.
(b) Federal insurance contributions or self-employment tax.
(c) Mandatory union dues.
(d) Mandatory retirement payments.
(e) Health insurance payments, excluding payments for coverage of the minor child.
(f) Court-ordered support for other children which is actually paid.
(g) Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court.
93
When can court consider nonrecurring income for purposes of CS?
61.30(13) - if recurring income is insufficient to meet needs of child, court can order support to be paid from nonrecurring income or assets
94
IF court orders CS from a nonrecurring asset, what MUST court find
That the payor is depleting the asset to maintain lifestyle or that recurring income is insufficient.
95
Can child support received for a different kid be considered income for purposes of child support?
No - child support received from the parent of another child is not to be included in recipient's income.
96
If court determined bonus income is regular and recurring, what considerations must be made?
Must consider the receipt of the bonus in structuring such payments.
97
Should annual gift to Former Husband by his mother for kid's education be included as income to Former Husband or purposes of child support?
Nope.
98
What is net business income?
Gross receipts minus ordinary and necessary expenses required to produce income plus a reduction for income taxes including self employment taxes.
99
Is the definition of net business income for purposes of child support the same as IRS standards?
No
100
How should social security benefits received by a parent FOR A CHILD'S DISABILITY be treated?
That should not be treated as income to that parent but that could be used as a basis for a deviation from child support.
101
How should social security benefits for a child received as a result of PAYOR'S DISABILITY or RETIREMENT be treated for child support?
It should be included when calculating family's gross income and then credited against the disabled parent's child support obligation
If the credit is MORE than the child support, the excess goes to benefit of kid and if the credit is less than child support, the parent pays the difference.
102
If there is no exchange of child support due do a credit as a result of social security benefits for a child received as a result of payor's disability or retirement, what must court include in its order?
It is an abuse of discretion for court to say no child support is owed - it must specifically state the child support owed before applying disability benefit and include findings so everyone is on notice that obligation is being reduced because of the benefit being received
103
How are VA disability benefits viewed for purposes of child support?
Included as income for child support.
104
How are private disability benefits viewed?
Income for child support.
105
How should court treat trust income for purposes of child support?
All trust income must be included - even if beneficiary of trust elects to not maximize the total amount entitled to - the total amount shall be imputed for cs purposes, error not to.
106
Can value of free housing be included as income?
Yes.
107
Can payment of monthly living expenses by 3rd party be included as income?
It may be
108
What must court do if it includes payment of health insurance?
It has to then subtract that amount for health insurance for that parent from their net income
109
What is the 4th DCAs view on determining exclusive use of marital home for purposes of child support?
4th DCA has determined its a carrying cost of a joint asset and not considered an in kind income for child support.
1st, 2nd and 5th say it's an in kind benefit in the form of reasonable rental value to the parent in possession of the home and therefore 1/2 of reasonable rental value should be included as income to the parent in possession of home for purposes of child support.
110
What must court do in event of voluntary unemployment or underemployment for purposes of child support?
Monthly income SHALL (no discretion here) be imputed if unemployed or underemployed and court finds it's voluntary & not due to physical or mental health out of that parent's control BUT
Court can refuse to impute income if court finds its necessary for the parent to stay home with a child subject to the child support.
111
What is the standard imputation of income analysis for child support?
COURT MUST MAKE SPECIFIC FINDINGS
1.Voluntary
2. Less than diligent efforts
3. Employment Potential and Probably Earning Levels
112
When must court determine unemployment or underemployment is voluntary for child support?
If the unemployment or underemployment is not due to mental or physical issues which they have no control.
113
What must court consider in determining the employment potential and probable earning level of an unemployed person for child support?
1. recent work history
2. occupational quals
3. prevailing earnings in community
114
What can imputed income NOT be based on?
1. income records that are more than 5 years old at time of hearing
2. income at a level party never earned in past UNLESS recently degreed, licensed, certified relicensed ore recertified
115
Who has burden of proof for imputation of income?
Parking seeking imputation at an amount other than median income has the burden to present competent, substantial evidence that:
1. unemployment/underemployment is voluntary; and
2. identifies the amount and source of imputed income through evidence.
116
When must a court impute median income of a year round full time work?
1. income for a parent is unavailable
2. parent fails to participate
117
What happens for child support purposes if a parent's income is unavailable for action or fails to supply adequate info?
Income shall be imputed and there is a rebuttable presumption that their income is equivalent to median income of year round full time workers.
118
When can the court NOT impute income?
When income is based on illegal activities (i.e., selling illegal drugs)
119
Can income be imputed if you were fired?
If fired based on your voluntary actions.
120
Can income be imputed if a parent voluntarily leaves employment to enhance career?
Court has to evaluate if enhancement will benefit kids
121
How is child support calculated?
STEP 1 Determine net income for each parent (allowable deductions from gross income)
STEP 2 add parties income together
STEP 3 determine guideline amount
122
What if obligor's net income is less than the $800 - lowest amount in CSG
1. The parent should be ordered to pay a child support amount, determined on a case-by-case basis, to establish the principle of payment and lay the basis for increased support orders should the parent’s income increase.
2. The obligor parent’s child support payment shall be the lesser of the obligor parent’s actual dollar share of the total minimum child support amount, as determined in subparagraph 1., and 90 percent of the difference between the obligor parent’s monthly net income and the current poverty guidelines as periodically updated in the Federal Register by the United States Department of Health and Human Services pursuant to 42 U.S.C. s. 9902(2) for a single individual living alone.
123
What factors is the court required to consider when deviating more than 5% from the child support guidelines?
"Every Incredible Parent Should Always Take Interest And Participate Actively."
1. Extraordinary medical, psychological, educational, or dental expenses.
2. Independent income of the child, not to include moneys received by a child from supplemental security income.
3. The payment of support for a parent which has been regularly paid and for which there is a demonstrated need.
4. Seasonal variations in one or both parents’ incomes or expenses.
5. The age of the child, taking into account the greater needs of older children.
6. Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though fulfilling those needs will cause the support to exceed the presumptive amount established by the guidelines.
7. Total available assets of the obligee, obligor, and the child.
8. The impact of the Internal Revenue Service Child & Dependent Care Tax Credit, Earned Income Tax Credit, and dependency exemption and waiver of that exemption. The court may order a parent to execute a waiver of the Internal Revenue Service dependency exemption if the paying parent is current in support payments.
9. An application of the child support guidelines schedule that requires a person to pay another person more than 55 percent of his or her gross income for a child support obligation for current support resulting from a single support order.
10. The particular parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties, such as where the child spends a significant amount of time, but less than 20 percent of the overnights, with one parent, thereby reducing the financial expenditures incurred by the other parent; or the refusal of a parent to become involved in the activities of the child.
11. Any other adjustment that is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt that the parties jointly incurred during the marriage.
124
Can court deviate from gross up child support guidelines?
Yes, based on all regular deviation factors AND
1. obligee's low income & ability to maintain basic necessities of a home for a child
2. likelihood that either parent will actually exercise timesharing
4. whether all children are on same timesharing schedule
125
If a parent has subsequent kids and gets a secondary job to support, can that secondary income be used to modify child support upwards?
Court MAY disregard that second source if it decides it was obtained primarily to support subsequent kids.
126
If a parent subject to child support has subsequent kids, can they seek downward modification?
Subsequent kids is not a justification to decrease and existing award.
127
What is required with the filing of child support actions or modifications of child support?
Financial affidavit must be filed simultaneously.
128
If Respondent is served with child support action or modification action what must Respondent file with answer?
Financial Affidavit OR as soon as reasonably practical but in any case AT LEAST 72 HOURS prior to a hearing on finances of either party.
129
What should court consider in determining retroactive child support award?
1. income during retroactive period
2. actual payments made by parent to other or child or 3rd parties for benefit of child
3. court shall consider installment payment plan for retroactive payments.
130
Can court defer on child support until later when a parent has no income?
No, the court must calculate child support.
131
What must child support order and IDO include?
1. child support to terminate on 18th day until court finds child is age 18 and in hs with reasonable expectation of graduation before 19th bday
2. step down cs if more than 1 kid
3. month day and year when the reduction or term happens
4. full name dob of each minor child
132
Must all child support be paid via IDO?
If both parties request and court finds it is in the best interests of the child, then child support doesn't have to be paid via IDO.
133
If child support is not paid via IDO, what is an alternative?
Payment directed to depository or state disbursement unit.
134
Does trial court retain jurisdiction to modify child support?
Only IF
1. Modification is in the best interests of the child;
2. Substantial Change in Circumstances;
3. until child turns 18
4. over 18 if in high school
5. if child isn't emancipated
6. child hasn't married jointed armed serves and isn't dead
135
When must court include health insurance in child support order?
When it the cost is reasonable and accessible - it's presumed reasonable if adding it does not exceed 5% of gross income.
136
When can order for health insurance be served on obligor's employer?
1. obligor fails to give written proof to obilgee w/in 30 days
2 obligee gives written notice of intent to enforce by mail
3. obilgor fails to provide proof of insurance within 15 days of receipt of notice
137
For a union employer, what must they do upon receipt of an order for health insurance?
Must enroll child in group plan regardless of enrollment period and withhold premium from obligor's income. If more than one plan offered, will enroll in same one as obligor.
138
Can party get an IDO after entry of Final Judgment with no IDO?
Yes - by filing an affidavit with the depository alleging default and request for future payments via depository , provide copy to court and each party 15 days thereafter payments shall be made through depository except for IDO must be through SDU
-no court appearance is required
139
When can court order child support under uniformed deployed parents custody and visitation act?
If court has issued an order granting caretaking authority, the court can enter temp child support authorized by general law if court has jurisdiction under UIFSA
140
If court has jurisdiction for child support under Uniformed deployed parents and custody vitiation act, what may court include in its order?
1.temp child support from deploying parents to other per 61.30
2.require deploying parent to enroll child as military dependent
3. suspend abate or reduce child support of other parent until timesharing order previously in effect is reinstated
141
What must IDO include?
SHALL:
1. direct payor to deduct support form income
2. state amount of arrearage owed and direct payor to withhold an extra 20% until arrearage paid in full
3. provide that if delinquency accrues after order, payor shall deduct 20% until current
4. direct payor to not deduce in excess allowed by consumer credit protection act
5. instruct payor re bonuses
6. In title IV case direct payor to provide to court depository the date the deduction is made
7. in title iv case if obligation is reduced or terminated due to emancipation and there is an arrearage, direct payor to continue to pay until satisfied
8. direct payment to be made to SDU
142
Are IDO's immediately implemented?
Yes, unless court says why it's in best interest to not be immediate, proof of timely payment before IDO or by agreement but it can't be delayed by more than 1 month.
143
When can obligee ask court to suspend obligor's driver's license or professional license?
Must give notice and obligor has 30 days to cure issue if nothing done then obligee can petition court for relief
144
Is a party entitled to interest on child support arrearage?
A party is entitled to interest prospectively on amount of retro from date court determines amount and orders payment
145
When can court order payment of private school?
1. parties have ability to pay
2. it's a customary standard of living
3. it's in child's best interest
146
How does court treat orthodontic expenses?
Split in districts - but unless it's deemed medically necessary, it's not to be included. Basic braces for aesthetics not likely mandatory.
147
Can court order lump sum child support?
No but it can sequester a parent's assets to secure future child support.
148
Does court have jurisdiction to consider modification of child support and alimony when the underlying order is on appeal?
Yes - it just can't enter a Final Judgment.
149
DOR brings an administrative action and child support order is established. Can the circuit court vacate it or retroactively effect order?
No- but it can enter an order changing support prospectively.
150
What must all income deduction orders entered on or after October 1, 2010 include?
61.13
1. Child support ends on child's 18th birthday, unless court previously finds that the child will be dependent beyond the age of 18 years due to a mental or physical incapacity that started before age 18 OR, if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.
2. Schedule stating amount of child support and what it will be when one or more kid no longer entitled to child support
3. Month, day and year that the reduction or termination of child support takes effect.
151
Does a court who initially enters an order of child support retain jurisdiction?
61.13 - The Court that makes an initial termination of child support retains jurisdiction after entry of the order to modify amount and terms and conditions IF modification is in best interests of child; when child reaches majority; if substantial change in circumstances; or when child emancipates, marries, joins armed services, or dies.
152
What must a child support order include?
Provision for health insurance when it is reasonable in cost and accessible to child.
153
When is health insurance for child deemed reasonable in cost?
If the incremental cost of adding health insurance for the child does not exceed 5% of the gross income (defined in 61.30) of the parent responsible for providing it.
154
When is health care deemed accessible to the child?
If health insurance is available to be used in the county of the child's primary residence or in another county if the parent who has the most timesharing agrees.
155
When is health care deemed accessible to a child when parents have equal timesharing?
Health insurance is accessible to the child if the health insurance is available to be used in either county where the child resides or in another county if both parents agree.
156
What must court include in order if presumption that health insurance is affordable is rebutted?
Court may deviate ONLY UPON WRITTEN FINDING EXPLAINING ITS DETERMINATION why ordering or not order health insurance for kid is unjust or inappropriate.
157
How can the department enforce a support order under Title IV-D of the Social Security Act which requires that the obligor provide health insurance?
Through the use of the national medical support notice, and an amendment to the support order is not required.
158
What steps are required by department in enforcing health insurance through national medical support notice?
(1) The department shall transfer the national medical support notice to the obligor's union or employer.
(2) The department shall notify the obligor in writing that the notice has been sent to the obligor's union or employer, and the written notification must include the obligor's rights and duties under the national medical support notice.
(3) The obligor may contest the withholding required by the national medical support notice based on a mistake of fact.
159
If an obligor contested the withholding by medical support notice, what must they do?
To contest the withholding, the obligor must file a written notice of contest with the department within 15 business days after the date the obligor receives written notification of the national medical support notice from the department.
Filing with the department is complete when the notice is received by the person designated by the department in the written notification. The notice of contest must be in the form prescribed by the department
160
What must department do upon timely notice of contest of a medical support order by obligor?
Within 5 business days, schedule an informal conference with the obligor to discuss the obligor's factual dispute. If the informal conference resolves the dispute to the obligor's satisfaction or if the obligor fails to attend the informal conference, the notice of contest is deemed withdrawn.
161
What if the dispute at informal conference regarding medical support order doesn't resolve the issue?
If the informal conference does not resolve the dispute, the obligor may request an administrative hearing under chapter 120 within 5 business days after the termination of the informal conference, in a form and manner prescribed by the department.
162
While the medical support order contest is underway, what happens with the premium payments to be withheld that are in dispute?
The filing of a notice of contest by the obligor does not delay the withholding of premium payments by the union, employer, or health plan administrator. The union, employer, or health plan administrator must implement the withholding as directed by the national medical support notice unless notified by the department that the national medical support notice is terminated.
163
It Title IV-D cases, what must department do if obligation to provide health insurance is terminated?
The department shall notify an obligor's union or employer if the obligation to provide health insurance through that union or employer is terminated.
164
In a non Title IV-D case, if obligor order to pay health insurance premium, what has to happen?
Upon receipt of the order to provide health insurance premium or upon application of the obligor pursuant to the order, the union or employer shall enroll the minor child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period and withhold any required premium from the obligor's income. If more than one plan is offered by the union or employer, the child shall be enrolled in the group health plan in which the obligor is enrolled.
165
What should employer or union do upon receipt of medical support notice?
The union or employer shall transfer the notice to the appropriate group health plan administrator within 20 business days after the date on the notice. The plan administrator must enroll the child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period, and the union or employer must withhold any required premium from the obligor's income upon notification by the plan administrator that the child is enrolled. The child shall be enrolled in the group health plan in which the obligor is enrolled. If the group health plan in which the obligor is enrolled is not available where the child resides or if the obligor is not enrolled in group coverage, the child shall be enrolled in the lowest cost group health plan that is accessible to the child.
166
What must employer or union do if obligor's employment is terminated in cases where a medical support order was sent to the employer or union?
Notify the dept with 20 days & provide obligor's last known address and name and address to obligor's new employer if known.
167
If the combined amount to be withheld for current support plus the premium payment for health insurance exceed the amount allowed under the Consumer Credit Protection Act, and the health insurance cannot be obtained unless the full amount of the premium is paid, what must union do ?
The union or employer may not withhold the premium payment. However, the union or employer shall withhold the maximum allowed in the following order:
(I) Current support, as ordered.
(II) Past due support, as ordered.
(III) Other medical support or insurance, as ordered.
168
What happens to an employer, union or plan administrator who doesn't comply with a medical support order?
Civil penalty not to exceed $250 on 1st violation and $500 for subsequent violations including attorney's fees and costs.
169
What can department do to enforce if employer, union or plan administrator who doesn't comply with a medical support order?
Petition circuit court to enforce the medical support order .
170
Can the department adopt its own rules to administer child support enforcement provisions?
Yep!
171
When can court order child support be secured by life insurance?
To the extent necessary to protect an award of child support, the court can order life insurance or a bond, or secure child support with any other asset suitable.
172
If payment via IDO, where does money goes?
State Disbursement Unit
173
What is now required to preserve appeal of alimony award attacking findings?
MUST file a motion for rehearing to preserve your claim for appeal if you are attacking the following:
-lack of finding need & ability
-failure to make finding net incomes
-failure to consider factors
Must file within 15 days
174
How many days do you have to file a motion for rehearing?
15 days after entry of final judgment or order
175
Are CSG a basis for proving a substantial change in circumstances for purposes of modifying child support?
Yes, but only if the difference is at least 15% or $50 a month, whichever is great before the court can consider the guidelines a substantial change in circumstances. F.S. 61.30(1)(b)
176
Court must award child support to all children until when?
For all minor children, or a child who is "dependent in fact" and between the ages of 18 and 19 and who is still in high school and is performing in good faith with reasonable expectation of graduation before he or she reaches the age of 19. F.S. 61.30(1)(a)
177
Can the Court vary from the child support guidelines?
Yes, plus or minus 5%, after consider relevant factors, including the needs of the child(ren), station in life, standard of living, and the financial status and ability of each parent. F.S. 61.30(1)(a)
178
Can the Court vary from the child support guidelines by more than 5%?
Only upon a written finding explaining why ordering payment of such guidelines amount would be unjust or inappropriate.
179
When must a court vary from the guideline amount of child support?
When any of the children subject to the child support order or agreement spend a substantial amount of time with either parent.
180
What does the party requesting imputation have to prove?
The unemployment or underemployment is voluntary; and identifies the amount and source of imputed income through evidence of income available for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties' timesharing schedule and their historical exercise of the timesharing provided int eh parenting plan or relevant order.
181
Is incarceration treated as voluntary unemployment?
No, but the court may consider this to deviate from the child support guideline amount.
182
Are social security benefits received by a minor due to the retirement or disability of the child's parent included in that parent's gross income
Yes.
183
How does the court determine the child support amount when the combined net income is greater than 10,000 a month?
The obligation is the minimum amount of support provided by the guidelines plus a certain % multiplied by the amount over 10k.
184
How is "substantial amount of time" defined for purposes of adjusting child support?
at least 20% of the overnights of the year (i.e., 73 overnights)
185
Is a parent's failure to regularly exercise the timesharing schedule deemed a substantial change in circumstances for purposes of modifying the child support award?
Yes, as long as it was not caused by the other parent.
186
When child support is modified due to a parent's failure to exercise timesharing, when is the modification retroactive to?
the date the parent stopped regularly exercising timesharing (this differs from a modification based on other grounds, wherein retro only to date of filing mod)
187
When can the court consider nonrecurring income or assets for child support purposes?
When the recurring income is not sufficient to meet the needs of the child.
188
Is an affidavit showing the party's income, allowable deductions and net income required when filing a petition for child support?
Yes.
189
In an initial determination of child support, can the court award retroactive child support?
Yes, to the date the parents no longer resided in the same household, not to exceed 24 months preceding the filing of the petition .
190
What does the court consider in determining retroactive child support ?
Guidelines in effect at the time of the hearing subject to the obligor's demonstration of his or her actual income during the retroactive period, all actual payments made by the other parent during the retroactive period; considering an installment payment plan.
