Child support will be ordered when there are children involved in a divorce. The payment of child support must be delineated in the parties' Marital Settlement Agreement and the Final Judgment of Dissolution of Marriage. Child support is based upon a statutory formula that encompasses, among other factors, the amount of time-sharing, specifically overnights, each party is exercising with their children. For example, child support from the breadwinner spouse (e.g. the payor spouse) to the other spouse may be substantially reduced if the parties exercise equal time-sharing as opposed to a payor spouse exercising less time-sharing such as alternating weekends and one overnight each week.
After the parties are divorced and child support is ordered, the payor spouse should be careful about ensuring that he or she exercises all of the time-sharing afforded to him or her, because the failure to do so, may give rise to the non-paying spouse's right to seek an increase in his or her child support obligation. Conversely, the non-paying spouse should keep copious notes as to if and when the payor spouse fails to exercise his or her time-sharing. We suggest keeping notes on a monthly calendar.
It is intuitive that the expenses on behalf of the children will increase for one parent when he or she takes on more time-sharing with the children than that which was contemplated in the initial divorce. Certainly, it would be unjust for that parent not to receive the benefit of an increased level of child support and Florida legislature has agreed with this logic.
Section 61.30(11)(c) of the Florida Statutes provides that a " parent's failure to regularly exercise the court-ordered or agreed time-sharing schedule not caused by the other parent... shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule. "
Case law indicates that application of this statute is mandatory, but missing an occasional contact will not be enough. See Buhler v. Buhler, 83 So.3d 790(Fla. 5th DCA 2011). It would appear from the case law that the failure to exercise time-sharing must be continuous in nature. See id. This is why it is wise for parties on both sides of the fence to journal the amount of time-sharing that he or she exercises with their children.
If you feel that your spouse has failed to exercise his or her time-sharing that is set forth in your Marital Settlement Agreement and/or Parenting Plan or your Final Judgment of Dissolution of Marriage, you should meet with an experienced Family Law attorney to assess whether it is cost beneficial to seek a modification of child support.
For any questions on Child Support or other Family Law related issues, please contact Nicole Park or Rebecca Palmer.
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