Family Law FAQ
I was just served with a Temporary Injunction for Protection Against Domestic Violence by my spouse/girlfriend. What do I do?
Carefully read through the Injunction paperwork so you understand what persons you may or may not contact, whether the injunction prohibits contact with any minor children, whether you must turn in any firearms or any other such directives. The first page of the document will typically indicate a hearing time and place at which a hearing to determine whether a permanent injunction will be entered. YOU MUST ATTEND or the injunction will be entered. You should generally contact an attorney to discuss your rights, obligations and preparations for this hearing.
I’m contemplating a divorce and I am concerned about the division of our home. The mortgage balance very likely exceeds the value of the home and neither of us can afford to move out. What should I do?
This is not an uncommon situation given the current economic climate, however, this matter must be handled on a case-by-case basis. Numerous issues regarding the complexities of your unique situation must be discussed prior to formulating a plan of action. Contact an attorney with expertise in the area of Family Law to discuss these matters.
I have only lived in Florida for a couple of months. My spouse and my children reside in New York and have never lived in Florida. I want to get divorced, but do not want to have to litigate the matter up north. Can I file in Florida?
Simply put, No. For jurisdictional purposes you must be a legal resident of the State of Florida for at least six (6) months prior to filing for divorce, and you must have resided in the State of Florida just prior to your separation. In this scenario you would need to file in New York. Every factual scenario must be analyzed carefully as failing to file in the proper state can lead to paying multiple filing fees.
I caught my spouse cheating. I want to keep them as far away from my spouse as possible. Can you help me?
It is highly unlikely that a spouse’s extramarital indiscretions will prevent a spouse from spending significant time with his/her children. The Court, in determining if time sharing should be restricted will seek to determine if your spouse a danger to the children. Otherwise, the Court will utilize the factors outlined in Florida Statute 61.13 in determining what time sharing schedule is in the best interest of the children. It is advisable to sit with a Family Law Attorney and review these factors so as to better understand the balancing process the Court must use.
My spouse has very little to do with our home financially. I pay the mortgage, utilities and costs associated with the property. The property was purchased during the marriage, but it is only in my name. Does my spouse have any right to this property?
It doesn’t matter who actually paid the bills on the property. If the property was purchased during the marriage and marital funds and marital efforts were used, then the property is a marital asset that must be equitably divided by the Court. However, there are times when a property need not be divided equally and you should discuss your individualized facts with a Family Law attorney to determine whether if you fall under any exception.
I am financially responsible. My spouse, on the other hand, has incurred substantial amount of debt in his own name. Can this debt be completely assigned to him?
The question becomes whether or not this debt was the result of “marital waste” or “dissipation.” Without proof of wrongdoing or expenditures on extra-marital affairs the debt will likely be equally divided by the Court.
My former spouse is living with someone. I pay her a significant amount of permanent alimony and I don’t think it is right that she receives money from me when she’s living with him. Am I right?
You’re probably right. However, what you are asking the Court to do is modify your Final Judgment of Dissolution of Marriage given that she’s in this relationship. You must show a “substantial change in circumstances” first. She need not get married to this individual for such a substantial change to be established. Rather, you can show that she’s engaged in a supportive relationship.
I am already divorced and I receive child support from my spouse. I know that he’s hiding money. His tax returns say one thing and his lifestyle says another. Can I get increased child support?
Honestly, it depends on how well he has the money hidden, the lifestyle he’s leading and your willingness to expend your monetary resources to attempt to gain an increase in your child support. It comes down to a cost-benefit analysis with your attorney fees and costs and the potential gain. That being said, if you can show that his lifestyle has increased, the Court may impute an increased income. Depending on your evidence, the Court could make such an inference.
I want a 50/50 timesharing schedule. I don’t think the child should be with one parent over the other as we are both equally important in our child’s life. How will the Court decide upon a time sharing schedule?
Florida Statute 61.13 outlines the factors the Court will use and weigh in determine what is in the best interest of your minor child. Each parent is equally important in the child’s life and the Court will consider such a thought, but the schedule will ultimately be designed with the child best interests in mind and potentially not what either parent wants or needs. These issues can be extremely difficult and discussing your situation with an attorney can best prepare you for dealing with time sharing issues during the ongoing divorce process.
How is a divorce with children decided if the Respondent is served but fails to file an Answer, participate in the process or appear for hearings?
If the Respondent is served and does not file an answer within 20 days, you can have the Clerk of Court enter a default against the Respondent and should be able to proceed to set a Final Hearing by default, for the Court to adopt the relief you requested in your petition & proposed parenting Plan.
However if the Respondent moves to set aside the default, the could should (and likely) will set aside the default so he/she can defend the petition, enter a late answer, etc., so the issues (especially those related to the children) can be decided on the merits rather than upon some technicality/procedural default – as the gold standard to all questions related to the kids in a Dissolution of Marriage action is the “best interests of the children”.
Can you file an Emergency Petition for Child Support in Florida?
The quick answer is that absent truly exceptional circumstances, it is unlikely that establishing a support obligation would be considered an emergency. There are filing fees associated with filing a Petition to establish the support obligation, but it may be waived, or paid under a payment plan (depending upon which circuit you’re filing in) if the filer completes paperwork and is granted indigent status.
Part of the reason why child support is not typically even thought of as an emergency is because (1) to be a true emergency there has to be IMMINENT risk of irreparable harm or injury; and (2) in doing an initial establishment of support the court can look back and establish the support obligation up to 2 years PRIOR to the date of filing of the action.
Mediation – Is what happened in the mediation admissible in court or is anything that transpired confidential even at the upcoming hearing?
Everything said at the Court ordered mediation is privileged and may not be repeated or brought up to the Court unless the other side waives the privilege. There are a few exceptions – such as new found allegations of child or elder abuse, actual criminal acts perpetrated at the mediation etc. However, as a general rule the mediation is confidential – as that confidentiality is what encourages people to speak freely and make offers that they would otherwise not, in hopes of settlement.
Does a boyfriend / girlfriend have any rights to personal property or support in Florida if the parties have a child together?
As part of a Family Law proceeding, if the two of you were not married, you will be entitled to very little from him beyond establishing child support, the obligation to provide insurance for the child, a division of any uncovered/uninsured medical expenses for the child, a potential division of extracurricular activity expenses/private school expenses (if those are ongoing), and perhaps attorney’s fees, if there is that significant a disparity in incomes & ability to pay.
There is no “palimony” or any other form of support that could/should be paid by one to the other, if you were not married as common law marriage has not existed in Florida since 1967/1968.
Depending upon what your living situation was – joint names on a lease, on a car title or auto loan, etc., there may be a claim for a civil action against him – but it would not be in the nature of a Family Law proceeding, it would be in the same realm as if you and a buddy/friend/business associate entered into the same contract/arrangement.
If one of the parties was married to someone else during the relationship, however, then he/she can likely suffer in the dissolution of marriage proceedings because if he/she has spent significant sums on the adulterous affair, those funds can be held against his/her portion of the equitable distribution of the marital estate due to his waste/dissipation of same.
Obviously, the support obligations are contingent upon an actual establishment of paternity, and in conjunction therewith he would be able to seek the establishment of a Parenting Plan and time-sharing arrangement.
We’ve only been married for three (3) weeks and I’m very unhappy. How can I annul the marriage?
Unless you can prove that the marriage itself was void from the start (e.g. he was still married to someone else at the time you wed, etc) you would need to prove that there was fraud in the inducement (or some other reason) AND that you have not consummated the marriage – if you are going to pursue an annulment, otherwise you’ll need to pursue a Dissolution of Marriage. However, keep in mind that to pursue a Dissolution of Marriage you’ll need to honestly testify under oath that you believe your marriage is irretrievably broken, and many Judges will ask if you’ve made any effort to seek counseling or anything else to help reconciliation. Ultimately, since Florida is a “no fault” state, if one of you wants out, they’ll grant the dissolution, but it will be a lot faster & easier if both parties sign off on a Simplified Dissolution of Marriage proceeding based upon the limited time of the marriage.
Is a 95 item Request to Produce excessive and oppressive or do I have to respond to it?
As long as there are financial issues open & pending in the case, then the documents covered by Mandatory Disclosure (Rule 12.285) are what must be provided. Unlike Interrogatories, there is no fixed number of items that can be sought via a Request to Produce – so it is entirely possible that there could be a 95 item RTP. That being said, there is ample case law that each of the Requests must be reasonably calculated to lead to admissible/relevant information and that it cannot seek virtually every and all conceivable financial document as that would be an impermissible “fishing expedition” – and the request would likely be “overbroad” and “too burdensome” to provide – so you’d need to file an objection to the discovery request along with a Motion for Protective Order regarding same, and then set a hearing upon the Objection/Motion so the Court can rule on what items you need to provide.
Do you have to get divorced in the same county where you got married?
No. An uncontested action may be filed in any county within the state. A contested action must be filed in the county where the parties last resided together as husband and wife with the intent to remain married (if that was within Florida), unless a party files somewhere else & the respondent does not oppose the venue selection.
We reached an impasse at our Family Law Mediation yesterday. Can I contact the mediator with questions I have?
You should be able to speak with the Mediator if he/she allows that – it’s up to them. Keep in mind that he/she cannot give you legal advice – they were there as a neutral 3rd party and cannot take sides, and the Mediator should’ve explained the confidentiality about the mediation at the start of the mediation.
Do I need a lawyer for my divorce?
If you have no kids, no property, etc., then you probably do not NEED one – unless it makes you feel better to have an experienced professional help you. There are standardized forms that you can download for free from the Florida State Court’s website – www.flcourts.org – and they come complete with instructions. You can then go through your local “Self Help” or “Family Law Intake Unit” (information for which can also be found on the state court website – just look under “General Public” for the self help forms & information on the intake units in your county). That way you should only need to pay for the filing fees associated with your case. IF you DO have children or real property, then it is certainly in your best interests to seek a consultation with an experienced Family Law attorney to review your case with you and learn about your rights, responsibilities and how to best handle your case.
How can I have my spouse served with divorce papers if I don’t know his/her address?
You have a few options:
1. He could agree to waive the need for formal service and he could accept “service” by mail – or even e-mail – he would just need to file an Acceptance of or Waiver of Service; or
2. You could attempt service by publication – but to do this you would need to perform a diligent search to find him, and if you are unable to locate him, then there is a specific Affidavit of Diligent Search and Inquiry that you can file in order to be able to do “Service by Publication” – where you can post the Notice of Action in the Court house and publish it in a newspaper for 4 weeks in a row, in order for the Court to allow such “service”.
You should know that effectuating service by publication limits the issues that the Court can address in the divorce proceeding, so you may want to discuss your case and options with an experienced Family Law attorney in your area to decide how to proceed (or the lawyer may be able to assist you with locating him).
Do I have to fill out a Financial Affidavit in a Simplified Dissolution of Marriage?
If it truly is a “Simplified” proceeding – with no children, no assets and liabilities for the court to divide, then no, you would NOT need to fill one out. However, if the court is awarding ANY financial relief of any kind to either party, then both parties must complete and file Financial Affidavits. In a simplified dissolution, both parties MUST appear and there must be no kids, property or financial relief sought to be addressed. If there are any of these, it’s not a simplified proceeding.
Can I make my ex provide me with an accounting of how he/she is spending the support money I pay?
Absolutely not. There is specific case law on point that says the recipient has the absolute right to spend the support however he/she sees fit and CANNOT be compelled to provide for any accounting of same. The guidelines provide for how the support is to be calculated, and the recipient does not need to identify what he/she spends it on, as money is fungible and gets co-mingled into the rest of his/her income, so by necessity a substantial portion is spent on “secondary” expenses which cannot ever accurately be measured/divided among the household members – things like mortgage/rent, utilities, the food bill for the household, fuel costs, etc. So once a person receives child support, it’s up them how to spend it and the Payor has no say in the matter.
If we’re paying for our daughter / son’s lawyer’s fees and we want to have decision making powers, is that ok?
From the attorney’s standpoint – absolutely not. Your son or daughter is the client and only he or she can make those decisions about the case no matter who pays the bills – and there is plenty of case law and advisory opinions on point as well the rules of professional conduct the lawyer is beholden to.
However, how you choose to wield the power of the purse to influence your daughter’s decision outside of the attorney’s presence is another matter entirely. Just be careful how you wield this leverage, for while it admirable that you are helping him or her, dictating him or her to live their life on “your” terms and making decisions “you” want as opposed to what he or she wants may come back to bite you in that relationship in the long run. It’s their life and they’re the one who has to live it.
If my wife and I are legally separated, how long does that last?
If you’re “legally separated”, then it was NOT in Florida, as Florida does not have a “legal separation.” It IS entirely possible to have an action for support unconnected with Dissolution of Marriage, and the orders that enter in such a case can be as final as those in any other Final Judgment.
I have a child support order but I’ve been paying my ex directly and I just received a Notice from the Florida Department of Revenue that my driver’s license is suspended. Does CSE in Florida have an obligation to let you know that they are now taking over the payments?
Typically speaking, when the DOR/CSE becomes involving in a case they will file a Notice of Redirection of Payments in your court file in the County where your order was established, then they should be noticing you in that action for any enforcement issues (although if they were doing a Notice of Intent to Suspend your Driver’s License and Vehicle Registrations then they likely used your address of record with the Florida Department of Highway Safety and Motor Vehicles).
Had you timely filed a Petition to Contest the suspension you could have stayed same – now you will need to play catch up and file a Motion to Reinstate your Driver’s License and Vehicle Registrations, along with a Motion to Credit/Adjust support Accounting in order to seek credit for all of the direct payments you made to your ex directly, and you will likely need to also pursue a Motion to Contest Delinquency, because if the payments have now been tracked through the SDU then the Clerk of the Court in that county has likely already noticed you at your last known address of record in the Court file with a Certificate of Delinquency when you didn’t timely pay through the SDU and now you’ll likely have a Judgment by Operation of Law which has entered against you with that delinquency and the balance is accruing interest pursuant to F.S. 55, that you’ll need to correct/set aside/ or satisfy.
You should immediately begin making your payments through the State Disbursement Unit to prevent further issues and seek a consultation with an experienced Family Law Attorney in your area who can help you rectify the situation and seek the appropriate relief.
How can I fight a proposed Income Withholding Order for a child support case I didn’t know I have when they are seeking to take a pending personal injury claim settlement that I have coming?
There is no simple way to explain the level of detail that will be needed for you to complete what your question proposes. You need to seek a consultation with an experienced Family Law attorney in your area to go through all of this in depth & figure out the best game plan. You may need to or be able to:
1. File a Petition to Contest the Income Withholding Order;
2. File a Motion for Relief from Judgment to set aside the improper order for improper service and/or lack of jurisdiction;
3. File a Motion to establish the reserved issues in your own previously filed action;
4. Be sure to bring copies of all of the paperwork to your consultation so the attorney can advise you which of the above make sense and/or are cost effective to proceed upon and whether that will stand to benefit you.
I have been separated from my Husband for more than five years, but we’ve never gotten a divorce and now I’m pregnant by my new boyfriend. Who will be the child’s legal father and what do I do?
If you are still married at the date of birth, then your Husband is the child’s legal father and his name will automatically go on the birth certificate. The purported biological father will not be able to sign the paternity acknowledgement, nor will he have any rights to the child.
What you need to do is to file for Dissolution of Marriage, acknowledging that you are pregnant with a child that is not your Husband’s, and seek to have the Husband divested of any potential legal rights and responsibilities to the unborn child – and have the hearing upon same granted PRIOR to the child’s birth, so that you will no longer be married & the bio dad will be able to sign the paternity acknowledgment and become the child’s presumed legal father.
If you do not do this before the child is born, then your Husband would need to bring an action under F.S. 742.18 to disestablish paternity, otherwise he will remain on board & on the hook for same.
You should seek a consultation with an experienced Family Law attorney who can assist you with the process, since the standardized state forms do not provide any detail on the divestiture of paternity for the unborn child & there is case law that you’ll want to cite to on point.
I have a mediation scheduled to try to change the parenting plan / time-sharing schedule for our daughter. Will the mediator decide child support, too?
A mediator has absolutely no ability to “decide” anything. They have no authority to do so – it’s entirely up to the parties what they will agree to or not. As is often said – mediation is the time when the parties can enter into an agreement to tell the judge what to do, otherwise the parties go to litigation where the judge tells the parties what to do….
That being said, if your ex wants to make his or her agreement contingent upon your agreeing to some particular support arrangement, it is up to you if you want to agree to that or to move forward with having the judge decide.
Hopefully, if you have both agreed upon a new time-sharing schedule that both of you feel is in the best interests of your daughter, you can also run some new guidelines based upon both of your current incomes, allowable deductions, the new overnight schedule, and who pays what for child care and health insurance for your daughter and see if any change in the child support is even an issue anymore.
At what age can the child refuse to visit with the other parent?
Once they’re 18 and have emancipated. Absent exceptional circumstances, the child cannot refuse to observe time-sharing until he/she emancipates & unless the parties agree to otherwise, they must follow the terms of their parenting plan and/or Final Judgment which established the parenting plan – unless or until a Court grants a modification of the order & changes the terms.
Is a potential Worker’s Compensation claim something that should be listed on a Financial Affidavit? If so, where? Will it affect child support?
Yes, that should be something reflected in as a contingent asset, since it’s uncertain what will be received and when. If, when & how that will affect child support is an entirely different matter. If it’s a one-time settlement, it’s certainly not income for calculating the ongoing obligation (as opposed to if he’s receiving regularly recurring ongoing Worker’s comp benefits) – however it may be attachable (e.g. garnished) for potential lump sum liquidation of the past due support/support arrears.
Is there a way to stop my ex from constantly filing motions and other papers dragging me back to court over and over?
If he or she has a good faith basis for the pleadings/motions, etc. – and/or they are using an attorney to represent him in the filings, then probably no.
If he or she is doing it on their own and repeatedly has no basis, then the Court can (upon proper motion) deem him to be a vexatious litigant and bar him or her from filing any additional motions/pleadings without counsel.
The Court can also sanction him by awarding you your costs/fees in defending against the repeated meritless claims under statute and developed case law.
How many times a year can I be made to fill out a Financial Affidavit during a modification?
There is no fixed number of times an update can be required – the need for any update to the Financial Affidavit is dependent upon if there has been any substantial changes since you did your last one, as pursuant to Florida Family Law Rule of Procedure 12.285(e) parties have a continuing duty to supplement documents required to provide under Mandatory Disclosure (bank statements, pay stubs, etc.), “whenever a material change in their financial status” occurs. If you’ve had no material change, you should not need to provide an updated Financial Affidavit and should be able to object to the discovery request and move for a Protective Order, potentially seeking sanctions and/or fees against the party whom is responsible for needless, excessive or vexatious litigation.
Can I accept a lump sum settlement instead of alimony?
Absolutely. Now whether that would be a good deal or a bad deal for you, we would have no idea without more information. The best thing would be for you to seek a consultation with an experienced Family Law attorney in your area who can review your situation with you and advise you if it’s a deal worth doing.
Can I subpoena information on my ex’s bank accounts if I’m trying to modify support?
Certainly! If he or she doesn’t provide them voluntarily you can motion to compel the production pursuant to the Mandatory Disclosure requirements if Florida Family Law Rule of Procedure 12.285 (since they are obligated to provide them to you per this rule). You can also do a specific Request For Production, take his or her deposition, do a third party request for production to subpoena the records directly from the banks & his or her employer, and potentially seek sanctions against him or her for the refusal to provide the documents.
I am currently ordered to pay $600.00 per month as ongoing child support and $200.00 per month towards arrears. My child will emancipate next month and I still owe arrears. Will my support automatically drop to $200 per month next month?
If your case is a Title IV-D Action (involving the Florida Department of Revenue) and if it’s being enforced via an Income Deduction Order / Income Withholding Order, then pursuant to Florida Statute 61.1301(3)(b), the deduction should continue at the full amount of $800, with the entirety being applied to your remaining arrears until they are satisfied.
I am disabled and receive disability, so my kids also receive a dependent disability benefit due to my injury. Does the children’s disability check count towards my income when calculating income to obtain child support from my ex-spouse?
Yes. The disability benefit you receive, and the dependent benefit the child receives as a result of your disability count towards your gross monthly income. Then the dependent benefit gets applied against your obligation at the bottom of the guidelines, and more often-than-not it completely satisfies your ongoing support obligation such that no additional sums would be due from you for ongoing support, so your ongoing benefit should not need to be double-dipped upon by an Income Deduction Order/Income Withholding Order.
If I try and put my child’s father on child support can he sue me for joint custody?
Your child’s father has the right to bring an action to pursue the establishment of his time-sharing rights, whether or not you pursue child support from him. Might your support case be the straw-that-breaks-the-camel’s back to make him be motivated to seek to establish those rights? Sure, that could happen – but he could also choose to file that time-sharing case tomorrow, regardless of if you have filed for child support. The two have very little to do with each other – you cannot deny him time sharing if he doesn’t pay child support and he can’t refuse to pay you child support if you don’t let him see the child. However, it IS very common for the dad to file such a case or counter-petition once they’ve been served with paperwork seeking child support – especially since one of the factors in calculation how much the child support obligation will be, is how many overnights the child sleeps at his house each year pursuant to a Court ordered parenting plan.
My daughter’s mother and I were never married, but paternity has already been established and I pay child support. Now she wants to move out of Florida, do I have visitation rights? Can I stop her?
If you were not married to the child’s mother, then unless you have filed an action to have your parenting rights – parental responsibility & time-sharing (previously custody & visitation), then you have none yet. You have the duty & responsibilities of child support, but no rights until you have them established by the Court. You will need to file a Petition to Establish same and have the mother served with the petition. Once the mother is served with the petition, then she will be bound by Florida’s relocation statute (F.S. 61.13001) and she may NOT relocate with the minor child for residential purposes more than 50 miles from her address at the time of service without either entering into a written agreement with you to permit the relocation or her filing a petition to relocate with the child and having the same granted by the Court – so if you want to potentially block her from relocating, it is imperative that you get her served BEFORE she moves.
How do I calculate the child tax credits to add to my ex’s income to calculate her income for a child support modification?
The quick answer is there is nothing “added” to her income – it’s a question of how much is subtracted from her gross income for what her ultimate end-of-year tax liability is. This is one of the reasons why the Mandatory Disclosure documents under Florida Family Law Rule of Procedure 12.285 is the last three years tax returns, so you can see how she files, what exemptions, deductions, credits she claims etc., so you can extrapolate her likely liabilities for calculation arguments. Sometimes it’s a matter of simply doing the math for a standard deduction, sometimes it involves the itemization, and sometimes there are additional tax credits (such as the Earned Income Credit) that need to be applied.
As a general rule you could pick up IRS Publication 15 and calculate her likely tax liabilities based upon the standard deductions, etc., to give you a ball park idea until you see how she’s actually been filing/claiming.
My son is 5 years old. Can I file for child support and get it all the way back to when he was born?
No. If you file in Florida & Florida law is applied then you can only go back 2 years prior to the date of filing pursuant to Florida Statute 61.30(17).
Do grandparents have any rights over grandchildren in the State of Florida?
Effectively, NO. While there is a grandparent visitation statute, 4 of the 6 provisions of the statute have been taken up on appeal and essentially been declared an unconstitutional infringement upon the privacy rights of the parents to self determine how they want to raise their children, so no one has bothered to rely upon the 2 other remaining paragraphs of that statute, since it appears that they would also be held to be unconstitutional as well.
In a divorce with minor children, does it matter who’s designated the “Custodial Parent” if we have 50/50 timesharing?
Neither parent has “custody” anymore, nor is either designated as “primary” or “secondary”.
The statute was changed a few years ago to provide that parents SHALL have “shared parental responsibility” of their children (unless ordering same would be not in the child(ren)’s best interests – e.g. to their detriment) – and then assigns when each parent shall enjoy “time-sharing” with the child.
Occasionally you will see an attorney throw in something like “majority time-sharing” but it has absolutely no legal effect as to what rights the order actually gives to either party – the language of the Parenting Plan sets that forth each parent’s rights. There is a part of the standardized Parenting Plan forms which asks the parties to make a “custodial parent” designation – but that is solely so the order will be recognized and honored as a custodial order pursuant to several international laws and treaties – such as the Hague Convention and the International Parental Kidnapping Prevention Act.
I previously agreed to pay child support ABOVE the child support guidelines, but now my expenses have increased. What are my options, how do I get it lowered and what do I need to show?
In order to obtain a reduction in your child support obligation you will need to be able to demonstrate that since the entry of the last order setting the support amount, there has been a “substantial change in circumstances” and you will need to be able to prove that this change was: involuntary, unanticipated and “permanent”.
One of the frequently used “substantial changes in circumstances” stems from F.S. 61.30(1)(b) which provides that the guideline calculations themselves can serve as the “substantial change.” If you calculate the guidelines based upon both parties’ current incomes, allowable deductions, factoring in the number of overnights by each party and who pays what for health insurance & child care costs for the children and the new guideline figure is at least 15% or $50.00 lower (whichever is the higher hurdle to jump), then the guidelines themselves can serve as the basis for the modification.
In your case, since you knowing agreed to a number above guidelines, you cannot just come back now & say “Hey, I want to pay guidelines” – you’ll need to prove that there’s been that involuntary unanticipated permanent change – and even then the other side may ask for an upward deviation from the guidelines based upon your prior agreement, so you’ll want to get all of your ducks in a row.
In short, while you MAY be able to demonstrate an increase in your expenses – you have to remember that the guidelines themselves typically do NOT take into those expenses the in the first place because child support is prioritized – in-so-much-as the statutes effectively say that child support comes BEFORE you pay any of those bills, so the only time the Court traditionally even gets into considering those is IF a party files a Motion to Deviate from the guidelines and raises those issues under F.S. 61.30(11)(a) – and even then you’ll need to show why your bills are so far out-of-whack from the norm for the Court to justify a deviation from guidelines.
You will likely need to be able to prove that your INCOME actually has changed (not through any fault of your own, etc.), in order to get the downward modification – but I would certainly recommend that you seek a consultation with an experienced Family Law attorney in your area who can review the actual agreement from your case – including both parties PRIOR financial affidavits & the guidelines that would have been filed with same (as required by the Family Law Rules of Procedure) in order to go through them with you and determine if you have a basis for seeking modification of your support obligation.
I received a Notice of Intent to Suspend my Driver’s License and I filed a Petition to contest it. Now I have received a Notice of Non-Participation from the Florida Department of Revenue. Why?
If the underlying Notice of intent to suspend the driver license & vehicle registration was not generated by DOR (e.g. If the obligee sought the notice through the clerk directly or thru private counsel) then this would be DOR’S way of saying they are not involved in the suspension request but will still be enforcing the obligation afterwards.
Can they legally use my income to calculate my husband’s child support obligation for his children from a prior marriage?
No. Child support is based upon the parents’ incomes, not that of their later spouses or significant others. Now, if his ex has filed a Supplemental Petition to increase his child support obligation for his children from the earlier marriage, and he has raised an affirmative defense to that increase saying that he cannot afford to pay more for them since he has since had children with you and he needs to support those children as well (a valid affirmative defense to such a requested increase), then the other side WOULD be entitled to learn your income to calculate how much of a credit/offset/reduction in his income he should be entitled to for such a defense, under what’s commonly known as a “Smith/Speed” credit.
How do I contest a Final Judgment of Paternity that was entered by a Florida Court?
Depending upon how long ago the order was entered will control how you need to proceed. If the order was entered less than 10 days ago, you can file a Motion for Rehearing and lay out all of your disputed items/issues with the Final Judgment – including whether or not the opposing counsel ever afforded you an opportunity to review and comment/object to the proposed order prior to submission to the Court.
If it has been more than 10 days then you will need to file a Motion for Relief from Judgment pursuant to Family Law Rule of Procedure 12.540 and Florida Rule of Civil Procedure 1.540.
Either way, you need to seek a consultation with an experienced Family Law attorney in your area who can review your case and Final Judgment with you to make sure you attack this improper order correctly, because you only get one chance to do so, otherwise you may be waiving arguments that you have…
My driver’s license has been suspended but I need my CDL to work to pay my child support. I have a contempt hearing coming up. Can the Judge order that I get my license back so I can work?
You need to file a Motion to Reinstate your Driver’s License and Vehicle Registration(s) and set that motion for the same time/day as the pending hearing on the Motion for Contempt. That way the Court can direct that either there is NO contempt and can potentially grant your motion for reinstatement, or even if they grant the motion for contempt, the court can require that your driver’s license be reinstated upon payment of the purge payment.
I receive Public Assistance and my ex (who pays me child support) just found out he has cancer and he’s unable to work as much. How do I suspend his child support obligation?
The quick answer is that “you” cannot do anything, and that DOR/CSE is right. When you signed up to receive public assistance benefits, your rights to say what happens with child support were subrogated to the State pursuant to F.S 409.2561, so you cannot agree to stop/suspend/terminate his support obligation as long as you’re receiving public help. From the state’s perspective, parents have a duty to support their children and if enough support was flowing then no state assistance would be needed (which is why they adjust the family grant based upon how much support is ordered/being paid).
HOWEVER, your ex could/should file a Supplemental Petition to Modify Child Support based upon this new “substantial change in circumstances” that reduces his ability to pay – and he should likely file a Motion to set aside the Writ of Bodily Attachment or a “Voluntary instanter” hearing (some places call them different things) to set forth why the arrest order should be set aside (it was likely put in place for a hearing that he missed & should include a “purge” amount that he can either pay to have it satisfied/set aside or he can move for a “Bowen” hearing to seek to have the purge amount reviewed based upon his present ability to pay & purge the contempt).
Likewise, if he’s eligible for State/Federal benefits – including Social Security Disability Insurance benefits, he should certainly apply for same, as the child will receive a derivative benefit and this will be applied against his currently ordered support obligation & can also be used to modify the amount of the ongoing obligation (and usually in the calculation of the guidelines under such a scenario, the derivative benefit fully satisfies the presumptive guidelines so no additional ongoing support is due from your ex, but he would still owe any delinquent support/support arrears – unless the SSDI grant issues a back payment (retroactive to the date the disability started) and then that lump sum retro benefit would also get applied to his delinquency/arrears).
Additionally, once your Ex is receiving public assistance under Title IV-E or Title XIX of the Social Security Act, the IV-D agency would be prevented from seeking enforcement of the order(s) against him for so long as he too is receiving Public Assistance.
In short, your EX should seek a consultation with an experienced Family Law attorney in your area who can review the orders, his situation & give him legal advice to help him with the process.