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Your Question Directly to An Attorney
How can I be certain I am the biological father? Can I get a DNA test?
In nearly all cases, a person is entitled to a DNA test if they request one, provided paternity has not already been established. The request needs to be made almost immediately in nearly all cases. If it is a Department of Revenue case, then the alleged father needs to request a DNA test at the very first hearing, before paternity and child support are established. And it doesn’t matter if you have already signed the birth certificate. Signing the birth certificate is only evidence that you “might be” the biological father. You are still entitled to a DNA test. If it is a Paternity or Divorce case, then a Motion will need to be filed and set for Hearing. At the Hearing the Judge will make a determination of whether or not the Motion should be granted, as well as who will bear the cost of the DNA test. Whether or not the Motion is granted depends on many factors; therefore, if you are not certain if you are the biological father, you should consult with an experienced Family Law attorney as soon as possible. In most cases, once paternity has been established (either in a Paternity action, a Department of Revenue action OR a Final Judgment of Dissolution of Marriage), it cannot be overturned, even if a later DNA test proves that you are not the biological father.
How is child support determined?
Child support is calculated through use of the Florida Child Support Guidelines. It is based on the combined net incomes of the mother and father, and also typically includes in the calculation the cost of child care and medical insurance for the minor child(ren). Many factors can affect the proper calculation of child support, including who claims the minor child as a dependent for income tax purposes, whether someone is voluntarily unemployed or underemployed, and the timesharing (visitation) that each party has with the minor child(ren). This last factor, the timesharing, frequently can have a significant impact on the child support that is exchanged. While there are some on-line sources for calculating child support, these are not always entirely accurate, and your ultimate child support obligation that is determined through the Courts may be substantially different. Therefore, it is best to consult with an experienced Family Law attorney before agreeing to a child support obligation. If you agree in writing to an amount that is higher or different than the proper amount (as determined by the Florida Child Support Guidelines), you may not be able to change it later, even if you want to.
If you are facing a situation wherein you think you will or may have an obligation to pay child support, please feel free to contact my office and schedule a free, initial telephone consultation. We can run “rough numbers” over the telephone in order to determine approximately what your monthly child support obligation should be, as well as discuss the various factors that affect that determination.
I have a child support hearing coming up with the Department of Revenue. Will timesharing or visitation be established at the same time?
No. The only thing that the Department of Revenue establishes is who the biological father is (paternity), who the child predominately resides with, and what the proper amount of child support should be according to the Florida Child Support Guidelines. In order to have the Courts address the issues of parental responsibility and timesharing (visitation), a paternity action would need to be filed.
When am I entitled to a modification of child support?
The short answer is: You are entitled to a child support modification any time that there has been a substantial change in circumstances that warrants a modification of the current child support order.
If it has been three years or more since the current order was entered or last reviewed for modification and it is a Department of Revenue case, then you may be entitled to an automatic review (you have to request one). However, the amount will only change if, based on your and the other party's current financial circumstances, the "new" guidelines amount is at least 10% or $25 per month (whichever is greater) different than the previously ordered child support amount.
If it has been less than three years since the current order was entered or last reviewed for modification, the order can still be modified if there has been a substantial change in circumstances. To be statutorily defined as a "substantial change in circumstances", the "new" guidelines amount (based on current financials and other information) must be at least 15% or $50 per month (whichever is greater) different than the previously ordered child support obligation.
There are many circumstances which can create a "substantial change in circumstances" that warrant a modification of ongoing child support. These include, but are not limited to, child care costs significantly changing, health insurance costs significantly changing, extended unemployment or a change in employment, substantially reduced or increased income, the emancipation of one of the minor children, a significant change in the timesharing or visitation arrangement and the failure of one party to regularly exercise previously ordered timesharing that affected their child support obligation, to just name a few. If you think you may be entitled to or need a modification of your currently ordered child support, contact my office and schedule a free, initial telephone consultation. We can run "rough numbers" over the telephone in order to determine whether you may, in fact, be entitled to a modification of your currently ordered monthly child support obligation.
When does monthly child support end in Florida?
In Florida, the child support obligation continues until the child has reached the age of eighteen, died, married, or become otherwise emancipated, except that if the child is between the ages of 18 and 19 and is still in high school, child support is paid until he graduates from high school or attains the age of 19, whichever first occurs. There is also some recent case law that states that even if the child has attained the age of 19, if he has not graduated from high school AND if this is because the parents mutually agreed to hold the child back a year or two in school AND if this is why he has not graduated from high school (not through some truancy or delinquency of his own), then child support can continue past the age of 19 and until graduation. Additionally, if there is a child who has a severe mental or physical disability such that they may never become self supporting, child support can continue past the age of 18.
In order for a child support obligation to continue past the age of 18, a Petition or Motion for continued support must be filed prior to the child attaining his 18th birthday based on one of the foregoing permissible grounds for same. Obviously, the courts and/or the Department of Revenue have no way of knowing when your child will graduate from high school. However, if the Order that establishes your child support obligation specifically states a date through which the obligation will continue that includes this additional period past the child attaining 18 years of age, then a Petition or Motion for continued support shouldn't need to be filed.
My paternity has been established and I pay child support. Why can't I see my child?
If your paternity and child support were established through the Department of Revenue, then there is no existing shared parenting or timesharing arrangement and one needs to be established by the Courts. The only thing that the Department of Revenue establishes is who the biological father is (paternity), who the child predominately resides with, and what the proper amount of child support should be according to the Florida Child Support Guidelines. In order to have the Courts address the issues of parental responsibility and timesharing (visitation), a paternity action would need to be filed.
Do I have a legal obligation to continue child support or pay for college expenses if my child goes to college after graduating from high school?
In Florida, once your general child support obligation ends as stated above, typically by the child reaching the age of 18, there is no legal obligation to continue to support the child or pay for college expenses. However, if you have previously agreed to continuing the child support obligation or contributing to college expenses AND that agreement has been ratified by a Court Order, then you would have created a binding obligation for yourself that is enforceable.
What is an income deduction order and how can I get one?
First, an ongoing child support or spousal support obligation must be established by the Courts. Then, and Income Deduction Order can be entered in the amount of that obligation. An Income Deduction Order is an Order that is entered by the Courts whereby child support or spousal support is automatically deducted from the obligated party’s paycheck by their employer, prior to them receiving their paycheck. If the obligated party is self employed, you will not be able to get an Income Deduction Order (they are already ordered to pay – a second order telling them to pay prior to paying themselves wouldn't do any good!). However, if they are not self employed and a child support or spousal support obligation has previously been established, then typically a Motion for Entry of Income Deduction Order is filed, along with a proposed Income Deduction Order, and the Judge will, in nearly ALL cases, grant the Motion and enter the Income Deduction Order. Once the Order is entered, then it must be served on the obligated party's employer, who is then required to enforce the Order or face civil penalties of their own.
I have one child that is turning 18 and my current child support is for more than one child. Will it automatically change? Or can I just reduce the monthly payment?
Unless the current Order establishing your ongoing child support obligation specifically delineates between the children and the amount of child support that is to be paid, with specific dates stating when the amount changes, No, it will not. Your monthly child support obligation will not automatically change. And if you unilaterally reduce the monthly payment, you will be creating a child support arrearage for yourself and could possibly end up in contempt of court for failing to comply with a Court Order. Even if the parties agree to reduce the child support, something MUST be filed with the courts and ratified by a Court Order for the ongoing child support amount to be changed.
I can't tell you how many times someone has contacted me for advice because one of their minor children emancipated (reached the age of 18 and graduated high school) and the parties had "agreed" to a lesser amount that was never ratified by a Court Order, only to now find out that they have thousands of dollars in child support arrears! And these arrears will ONLY go away if the other party admits to having agreed to the lesser amount AND the Court approves that agreement (which is up to their discretion, provided it meets with the Florida Child Support Guidelines). Therefore, it is of tantamount importance that if one of your children is emancipating and you are entitled to a modification of your ongoing child support obligation, you either file a Supplemental Petition for Modification of Child Support prior to the change occurring or, if the parties can agree, file a Joint Stipulation for Modification of Child Support. Until and ONLY when the Court modifies the child support obligation, will the child support obligation change.
I have one child that turned 18 and graduated from high school a while ago, but I never modified my child support and my current child support is for more than one child. Will the child support modification retroact to the date that the eldest child emancipated?
In most circumstances, No, Child Support modifications typically only retroact to the date that a Supplemental Petition or Joint Stipulation for Modification is filed. Therefore, it is of tantamount importance that if one of your children is emancipating and you are entitled to a modification of your ongoing child support obligation, you either file a Supplemental Petition for Modification of Child Support prior to the change occurring or, if the parties can agree, file a Joint Stipulation for Modification of Child Support based on the substantial change.
Does the amount of timesharing that a parent has with the minor child(ren) affect child support?
Yes, it can affect child support if the timesharing is considered substantial contact. Effective January 2011, if one parent has 20% or more of the overnights (73 or more overnights during the course of a year), then their child support obligation may be reduced. This is because the legislature, in determining the child support guidelines, contemplated that if the child was spending that much time with one of the parents, then they were already contributing to the support of the child by virtue of the amount of time that they were spending with the child. This doesn't mean that there won't be any child support paid at all, just that there is a second calculation that has to be done to determine what the appropriate amount of child support to be exchanged should be. The amount of the decrease is determined by the percentage of overnights, and someone who has 20% will not have nearly the reduction as someone who has 40% or more. And, if the parties incomes are significantly different, there will probably still be some child support exchanged even if the timesharing is equal or 50/50. The child support obligation will simply be a reduction from what it would be under the standard child support calculation.
Typically, only overnights are considered in determining whether someone has a "substantial contact" timesharing arrangement. However, it is possible that child support still be adjusted if someone spends a significant amount of time with the child that doesn't include overnights (for example, if someone essentially operates as child care for the child most of the time). If this is the case, then a motion can be filed to deviate from the Florida Child Support Guidelines, at which point evidence would have to be presented and the decision would ultimately be at the discretion of the Judge.
Your Question Directly to An Attorney
Your Question Directly to An Attorney