Cant pay child support…?

What happens if you can’t pay child support? Maybe you’ve lost a job, or changed careers. Here’s some guidance:

1. You cant voluntarily underemploy yourself – If you’ve had to change careers out of necessity, that’s one thing. But don’t voluntarily quit your 100K corporate executive job because you want to pursue your dreams of being an artist.  Courts generally will not allow you to reduce your child support because you’ve decided to make less money.

2. With that said, if you are back in school for another or higher degree, or retraining, with the hopes of obtaining work that will make you more money or keep you employable, Courts will usually allow this.

3. If you temporarily cannot pay, you should begin payment again as soon as you can. You will owe the back child support, but if you are making diligent efforts to find employment and have been unemployed for a short period, Courts will sometimes provide you time to get back on your feet.

4. Always pay what you can. Even if you cant make the full payemnt–making something is better than making nothing. It makes you look like you’re trying, and will lower the amount you owe for back child support later on.

5. If you do not anticipate “getting back on your feet,” such as where you’ve been forced to make a career change into a field that doesn’t pay as much, and this is a permanent situation, you should file to modify your child support as soon as you can. Courts can retroactively lower your child support payments, but only back to the day you file for a modification. So during the period before you file for modification, you will owe the full amount of child support.

6. If you owe a large back amount (known as an “arrearage,”) the court will often allow you to pay it off in incriments or payments. Depending on your income, of course, the court will allow you to add $50, $100, or another sum on top of your normal base child support payment to go towards paying off your arrears. The more you owe in arrears, the more the Court will make you pay–which is why keeping your arrears low by paying what you can even iof you cant pay the full support will be helpful.

7. Even if the child’s other parent is accepting lower payments (say, by taking the payments and not complaining), he/she can always come back later to ask for the balance. A parent can’t “waive” the child’s support. So even if the other parent says “don’t worry about it,” “pay me what you can,” or just says nothing, he/she can always change thier mind later. It’s not up to him or her to change your child support. Only a court can do that.

Talk to a lawyer about modifying child support. Don’t wait too long–you don’t want a huge arrearage judgement, or worse, to have your license suspended or other penalties that the State can use to force payment.

Child Support Q&A

Here’s some info on Child Support that you may have been curious about…

Q: How is child support calculated?

Child support is calculated on a formula which is defined by law, and is based on the income of the parents. You can’t change the formula, however, like any formula, the outcome varies depending on what number you put in. Thus, most disputes over child support are over what income is being used to make the calculations.

Q: Can’t someone just quit their job, show no money and not have to pay child support?

No. A judge will impute income to parties. In other words, the judge will put in the salary figure that you should or could be making, based on your employment history, education, experience, health, age, etc.  The law does not allow you to purposely unemploy or underemploy yourself.

Q: What if someone’s new spouse or boyfriend/girlfriend has a lot of money?

The income of a new spouse, roommate, significant other, etc., is not calculated in child support. So if your ex is now living with a millionaire but he’s still making 30K, it’s 30K that’s put in the formula. Of course, if the new millionaire spouse is paying bills, and providing income to your ex through “gifts in kind,” this may be considered by the court. But the mere fact alone that your ex may be with someone who is financially well off, doesn’t calculate into child support calculations.

Q: What if I’m already paying child support on another child?

The amount that you pay on another (previous) child will be reduced from your income total for the purpose of child support, effectively lowering your child support obligation.

Q: What is the “gross up method”?

When the non-custodial spouse (the one that doesn’t have the child more than 50% of the nights) has the child for more than 40% of the nights in a year, a different child support formula is used. So, if Mom has the kids 55% of the nights, and dad for 45%, the gross up method is applied. The gross up method will cut child support very significantly; often approximately 50%. In some instances, the parent with the child more than 50% of the nights could end up paying child support to the other, depending on income.

Q: Why is the gross up method used?

The logic is that when the child is with a parent for between 40-50% of the nights, even though that parent isn’t the custodial parent, the child is with that parent enough that he or she has to pay groceries, electricity, gas, and all the other expenses that come with having your children with you so often. Thus, that parent gets a “break” on the child support.

Q: Who pays for health insurance?

Generally, health insurance is calculated into the child support guidelines.  Thus, the spouse paying support will pay extra for health insurance (although not 100% of it; only a portion pursuant to the guidelines).

Q: What about other items, such as private school, sports activities, college funds, etc.?

There is no obligation that this be included in child support. Other than in certain limited situations, such things, while obviously beneficial to the child, are not included and do not have to be paid or contributed to by the spouse paying support. Sometimes, if these items were paid during the marriage for a significant amount of time, and there is a financial ability by the paying spouse, it will be ordered.

Q: How can I get child support collected through the state?

You should take your child support judgement to the Department fo Revenue for them to see if you qualify to have the state collect and enforce your agreement. You also have the option of the court entering an Income Deduction Order (IDO) which requires yoru spouse’s employer to automatically deduct payments from his check.

Q: Do I need an attorney to handle these kinds of things?

It depends on how complicated your matters are. Florida provides worksheets–basically, forms for lay people to fill out to get access to court to deal with routine matters. Of course, every case is different, and you may want an attorney depending upon the complexity of your case. The forms can be found by searching “Florida Family Law Forms” on the internet (Ill post a link to them when I get the chance…)

Changing your agreement or judgement

I hear attorneys say that one reason they love family law is that the clients are always back in their offices; the cases seem to go on forever. How can this be? Well, one reason is that people often seek to modify an agreement or a judgment, long after the divorce is finalized.

This makes sense–after all, life changes. Your agreement or judgement does not. You may sign a divorce agreement today that is supposed to govern you, your spouse, and your kids…forever. Courts recognize that an agreement which makes sense today may not make sense 10 years from now. On the other hand, we don’t want people running back to court to change everything, otherwise, what would the whole point of even coming to an agreement be in the first place if everyone could just change their mind?

Your divorce was finalized one of two ways–a judge entered a judgement and made the decisions, or you agreed in a settlement agreement or at a mediation. Generally, it is tougher to overturn agreements which are done by settlement or mediation. And some things can never be overturned–for example, if you got the house and paid your spouse whatever he was entitled to by your agreement, he cant come back later and say “I want more.” When it comes to most property, when it’s done, it’s done.

But when we talk about some types of alimony, child support, custody, visitation, and other aspects of the divorce, they are modifiable. Generally, however, you need a significant, material and permanent change in circumstances–and it cannot be something that you knew, anticipated, contemplated, or could have known, at the time of your original divorce.

For example, let’s say your Husband worked selling ads for the yellow pages on a commission only basis. If, after a few years, his income shoots up because he is selling more, you may not be able to modify, given that you knew what his income capability was at the time of the divorce, and you knew that there was a chance he could sell a lot and make a lot of commission at any given time. But if he now works for a Bentley dealership, and his commission structure, and earnings, are totally different, and his income has shot up significantly, that may be grounds to modify.

The key in any modification is to ask yourself, “what has changed since the original agreement,” and “is this chance significant?” Your chances of success will, of course, rest in the discretion of the judge, and oftentimes there are no hard and fast rules as to what a significant chance is or is not…a good attorney, however, can give you some guidance on what your chances may be to modify… 

This is why you need a prenup…

Think you don’t need a prenup? Prenups are for really rich people, celebrities, or people who own property in 28 different states? Think again…here’s why you need a prenup…

1. You have a business-Even if it’s a small one. The growth, appreciation, and expansion of your business can potentially be divided when you divorce. So that little cookie baking business you have now that made you $200 last year? One day, it may hit it big, be your primary source of income, and be known nationwide, and when it does, if you divorce, your business will be valued, and your spouse will be entitled to a payout for his half of the business.

2. You have an inheritance or your own money stashed somewhere. It’s nonmarital property now. But should you start depositing marital funds into it, or using it to pay for marital expenses, or start treating it like its both you and your spouses, it could be subject to division later on.

3. Your spouse is ill, or could get ill-There are many factors which determine when you will pay alimony. The health of your spouse is only one of them, but its an important one. If your spouse is ill, and unable to work (or limited), you are a prime candidate to pay alimony. Courts don’t like leaving ill spouses without .

4. You plan to have a child and one of you will be staying home to raise it-Again, this is only one factor in determining alimony, but an important one–you could end up paying alimony to a spouse who stays home, and foregos a career, to raise your child.

5. You get a lot of stuff from your family-If you have a trust fund, or real estate, given to you by family, and you start commingling it, using its assets, or drawing from it, it could be deemed marital and subject to division on divorce.

6. You make more than your spouse-You don’t need to be a millionaire to pay alimony. If you make, for example, 60K, and your souse makes 30K, even that difference could lead to an alimony award.

Prenups are sensitive subjects. No doubt you’ll face the “If we’re gonna be together forever why do we need a prenup?” question. But prenups are protection, and they don’t have to be one-sided–they can protect both of you, solidify your rights if you divorce, leading to less uncertainty, and result in a quicker, cheaper divorce, with less fighting. And, if you never need to use it….all the better….

Make separation short

OK, I’m not advocating divorce… but…

..you need to seriously think about how long you want to separate. There is no such thing as legal separation in Florida; you’re either married or you’re divorced. And there’s no definition of separated; for some it’s moving to different states, for others, different bedrooms, for others, it means one of you has posted a profile on Match.com.

Many choose to stay separated for extended periods of time. This can lead to difficulties later. Here’s why:

1. If you have kids, whatever schedule or custody has been informally established by you could be persuasive later. So if the kids have lived with dad for the last year, and then you decide to get divorced, you may have a more difficult time getting custody of them.

2. Your property will have to be valued, but now you’ve got an issue as to whether to value them at the time of separation, or the time of the filing of your divorce. If Wifey moves out and you’re paying the mortgage for a year, and the house skyrockets in value, she could be entitled to half of the current value of the house, even though she had nothing to do with it in the past year. Likewise, even if she were paying, you could owe her “rent” for living there, or owe her half of whatever moneys she paid on the home.

3. It gives him time to get into your mail, your email, and to talk with his friends, etc.

4. If he’s living in the home with your stuff, he can pull a truck up, get rid of all your stuff, and change the locks. This isn’t legal, mind you, but the cops won’t stop it and won’t help you because they’ll say it’s a civil or domestic matter. And it will cost you loads in attorneys fees to locate, and recover, your personal goods, or get compensated for them.

5. Your debts may still be marital. Meaning, those debts he’s charging on your joint card for the past year could still be considered both of yours.

6. If you win the lottery (could happen), or get promoted, or come into a financial windfall while you’re seperated, you could owe him half of it.

7. Memories fade–yours, and your witnesses. So if you need someone’s testimony, the accuracy of what they have to say may be affected.

8. A large component of alimony is the length of marriage. So the longer the marriage, the higher the chance of paying alimony–of course, if you’re a potential recipient, it may be better to to wait….

9. Your kids. I know we think divorce is bad for kids. But separation may be worse. Kids need patterns, definitiveness, and certainty. You want to plan their next school, what sports they will play, college planning, etc. That’s hard to do never knowing for certain what your final divorce decree will say. You also don’t have a solid schedule, meaning that if he “flakes out” and disappears with the kids, you will have a difficult time getting the cops to help you retrieve them, since you are still, technically, husband and wife.

10. Other areas-If you die, he’s your legal spouse and inherits a significant amount, much of which even your will cannot exclude him from. If you are catastrophically injured, he may be the one with the right to make life or death decisions.

OK, I don’t want to tell you to just get divorced and do it now. Oftentimes, separation can lead to couples getting back together. And oftentimes it is a needed buffer for the emotional trauma of divorce. But if you are one of those who are just seperated because you haven’t gotten around to divorcing yet…it’s time to get moving…

Why does my divorce lawyer cost so much?

Here are reasons why your divorce lawyer costs you so much money:

1. He doesn’t. It’s the other people–the court reporters, the experts, the accountants, the mediators, the guardian ad liteums….they all cost you a lot of money. Not every dollar you give your lawyer goes to him.

2. It’s your spouse’s lawyer’s fault–your spouse has a lawyer who is combative, won’t resolve matters, and inundates your lawyer with senseless motions and other documents, thus making your lawyer spend excess time on your case.

3. It’s your fault. You have’t gotten documents to your lawyer in a timely manner, or returned calls. You refuse to settle or compromise, or listen to reason, or listen to your lawyer when he makes suggestions to you.

The point? There are a lot of reasons why your divorce lawyer (and your divorce) costs so much money, and it’s not all his fault. Of course, he may be billing you $450 an hour, which can’t help things….