Law Offices Of Andrew Merlo, P.A.


(561) 893-9993

Law Offices Of Andrew Merlo, P.A.

Family Law FAQs

Once the proper amount of child support is established, the court issues an order requiring the amount of the child support payment going forward. Before a child support order is put in place, the parties can agree on a temporary amount and make voluntary payments amongst themselves and that could be recognized by the court. But if there is no agreement and you are talking about forcing one parent to pay against their wishes, then it would require a court order and that would happen after the case is filed. You engage in some exchange of financial disclosure with the other side and you probably attempt mediation either successfully or not and then you go in front of the judge. You tell the judge that you settled at mediation and make them start paying. Or you tell the judge that you were not able to settle at mediation and that you need a hearing. The judge will give you a child support hearing at that point if needed. It can take some time to receive your first payment. So, in addition to ordering child support be paid going forward, judges can also require that additional child support be paid retroactively to the date support was first requested.
You first have to file an action requesting court-ordered child support. Usually, it is filed as part of a divorce action or a paternity action but it does not necessarily have to be limited to those two scenarios. Next, you have to determine the true net income of each parent and then you determine a timesharing schedule establishing where the children will be spending their overnights. The total number of overnights with each parent is input into a calculation along with the parties’ respective net incomes and an amount of child support is determined. Actually getting a court order in place to receive your first child support payment can take several months. The case has to be filed first and a court action initiated. You can ask for temporary, immediate child support. Most judges are first going to require mediation. The parties are probably going to have to also exchange financial documentation prior to mediation and these things can take time. Once mediation has taken place, it may still take some time to get in front of the judge. The judge is the one who controls his or her scheduling calendar. We will do everything in our power to expedite the process. Although we will immediately push for expedited treatment or to get in front of the judge as fast as possible, it still can take several months before you begin receiving regular child support payments each month. One thing is for certain – the sooner you start the process, the sooner you will start getting monthly payments.
Maybe, and maybe not. If you think about it logically, if both parents are earning the same amount of money annually and both parents have the same amount of overnights with the children, then in theory, you would think that neither parent should pay the other any child support. That might be the case. But then again, it might not be the case if you look at all the other things that have to be taken into consideration. These can include who claims the kids for tax purposes and which parent pays the health insurance premium for the children and the children’s daycare expenses and things like that. Even though there could be equal time and equal income, it is not necessarily true that there is going to be no child support paid.
The parent who earns more money than the other parent will generally be the payor of child support in a divorce. In Florida, child support is governed by statute §61.30 and there is a mathematical calculation performed to determine the amount of child support. For the most part, who pays child support in a divorce is governed by the incomes of both parents and what the Florida child support guidelines dictate should be paid. Judges look at the number of overnights that the children spend with each parent and they look at the parents’ combined net incomes. They calculate the amount of child support that the higher earning parent is going to pay to the lower earning parent based on what the statutory guidelines establish should be paid. Even with the statutory child support guidelines in place, there are still many areas where people litigate and fight. Some people may try to hide or understate their true income. You also have to take into consideration issues such as the taxes that are paid by the parties, health insurance premiums and uncovered medical expenses of the children, the daycare expenses and other things like that that can have an impact on the amount of child support.
There are many reasons why someone may need to have a Parenting Plan modified. After the divorce is finalized, you are only going back the court for two possible reasons. You are either going to enforce what is ruled on, or you are going to modify what is ruled on. When you want to change what has been ruled on, the legal standard says there must be a substantial, permanent and unanticipated change in circumstances from what is currently in effect. If you are talking about modifying time-sharing, you are talking about the visitation schedule. The reasons to request a timesharing modification could be because of a job change or a change in school schedules or locations, for example, amongst other things. Modification of child support based on a change of someone’s income is much more common than the modification of timesharing. Let’s say at the time of the divorce, the mom has a certain income level and the father had a certain income level. At some point in the future that income is probably going to change. If that is the case, then the standard is 15% or $50. If your child support amount is going to increase or decrease by that 15% or $50 change, then you qualify for the modification of child support. Again, whether child support or some other condition requiring a modification such as timesharing or relocation, there has to be substantial, permanent, unanticipated change in circumstances. If you can present and convince the judge of that change of circumstances, the judge will grant the modification. Always keep in mind, the change that you are seeking has to be in the best interest of the child. That is always a requirement.
Battles over timesharing with the children can be some of the ugliest fights that I am involved in as a divorce litigator. Some parents insist on exactly fifty-fifty everything. Anything less, no matter how slight, is a deal breaker and it is over. They will fight till the last penny. They will fight with their last ounce of energy and their last breath to get fifty-fifty. Under those circumstances, it is going to be a battle till the end that may take more than a year (or years) to conclude. There is not supposed to be a presumption in favor of moms or dads in Florida when it comes to custody. Statutorily it is supposed to be exactly equal. However, courts do like maintaining the status quo, meaning they like continuing what has been working for a family. For example, say mom is taking care of most of the responsibilities regarding children and the parents are fine with keeping that arrangement. These parents are in agreement to an unequal timesharing arrangement or they are happy with what is called the Palm Beach model schedule of time-sharing, which is not equal. If people can come to an agreement or an understanding, a resolution of the time sharing, the cases can settle rather quickly. Once the time-sharing schedule is put in place, we can then calculate the amount of child support. As far as time sharing, any case can be done on an uncontested basis through very quick settlement when the people are communicating well and acting mature. However, you are fighting over children and many people will fight until they can’t fight any longer. It is maybe not the wisest decision, but it is the decision many spouses make. You might not even be the one making that decision. You might be on the opposite end and if so, you have to defend.
Florida courts generally feel it is detrimental to have a child testify against either parent. However, there are procedures for when it is allowed, but you have to first get the permission from the judge before a child will be permitted to do so. Even with permission, the child’s wishes are only a single factor of what is best for the child. There is no law in Florida where a child can testify once he reaches a certain age. Generally speaking, the child’s wishes are relevant and the older the child gets the more relevance his wishes become. For example, if a 4-year old child says, “I want to live with mommy”, then the judge is going to say, “That is nice but the child needs to see both parents”. However, if it is a 17-year old daughter saying, “I want to live with my mom”, the judge is going to give the 17-year old who can demonstrate sufficient maturity and understanding of the implications of their statement, a lot more weight. Again, there is no clear cut-off line; there is no age rule. The main factor is whether the child has the maturity to understand what it is that they are testifying about and the ability to tell the truth.
Relocation is when a parent moves 50 or more miles away for more than 60 days. Florida has a relocation statute that sets forth the procedure to be followed when a parent feels they need to permanently relocate. If you intend to relocate, then you must first go back to court. You are obligated to have the court approve the relocation in advance before doing so. You must also provide the other parent with notice of your intent to relocate. The parent who gets the notice has to respond within a certain amount of time. If the parent does not respond in a timely manner, it is going to be presumed there is no objection to relocation. If the other parent does object, which is often the case, there has to be a trial or a hearing and the judge will decide whether or not it is in the child’s best interest for the relocation to take place. No one can stop the parent from the move, but they cannot take the child with them. It requires the court approval and it requires strictly adhering to the relocation statute.
Every divorce case in Florida involving children must have what is called a “Parenting Plan” established, which sets forth parental responsibility, time-sharing and other details. Generally, both parents are awarded shared responsibility over the decisions, and it also sets forth the visitation schedule or the time-sharing schedule. It must be specific and must have a default schedule in place. In Palm Beach County, there is what is referred to as a “model parental time-sharing” schedule. Other jurisdictions have their own defaults but a normal schedule might be something like alternating weekends and sometime mid-week timesharing, for example. Mid-week time-sharing can be either equal or it can be more nights with one parent over the other. The default model parental time-sharing schedule in Palm Beach County grants one parent with the majority of the time – every Monday, Tuesday and Wednesday overnight. Every single Thursday overnight would go to the other parent. One parent might have the children Monday, Tuesday & Wednesday and the other parent would have every Thursday and then alternate weekends. Other families may decide that equally dividing the time would be best for their children. More and more families are moving towards fifty-fifty time-sharing schedules. If you feel 50/50 is best, perhaps your schedule might have the children with mom every Monday and Tuesday, and with dad every Wednesday and Thursday overnight. As you can see there are many different possibilities but every schedule has to take into consideration what is best for the child and what makes the most sense for the family. Parties are expected to be reasonably flexible, but there also must be a default schedule in place to avoid conflicts for those times when the parties cannot agree. The courts are going to hope the parents can work out any issues amongst themselves. If you can, great. The parents are always free and able to agree amongst themselves to any visitation schedule and the courts are more than likely going to have no problem with that. However, if for some reason a conflict arises and the default schedule cannot be complied with, it is the responsibility of the parent who has the child to make arrangements to find childcare while he or she is unable to follow the schedule. Another very important factor to consider when establishing a time-sharing schedule is the total number of overnights the children will be with each parent. Each parents’ total number of overnights will have a direct impact on the amount of child support. The more overnights a child spends with one parent the more credit that parent gets in regard to child support. So, a father who has the children only 80 overnights per year will pay more child support than if he had the children 150 overnights per year.
When the average person talks about children in a divorce, they usually refer to the parent having the majority of the time as the parent with “custody” and the other parent as having “visitation”. In Florida, however, the terms “custody” and “visitation” are no longer used. Rather they are referred to as “parental responsibility” and “timesharing” in this state. Under the law, both parents typically have equal decision making rights over the major aspects of their children. This is also what is called “shared parental responsibility”, as compared to “sole parental responsibility”, where only one parent would make all the decisions regarding a particular aspect of the child. This could involve specific issues regarding education or health of the child and which doctor to use, as examples. If the parents cannot agree, then the judge may appoint one parent sole parental responsibility to make those particular decisions. When the word “custody” is used, many people think of it as who is going to have the child the majority of the time. In Florida courts that is referred to as “time-sharing”. It is the schedule of where the children are going to spend the nights. There is a schedule that is established, called the “time-sharing schedule”, which specifies which nights are with mom and which are with dad. There are many different schedules and variations that can be put in place. A good timesharing schedule will be specific and address details like birthdays, holidays, vacations, school breaks, etc.
Andrew Merlo, Esq.

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