A court has the authority to enforce it’s support orders albeit child support or spousal support (alimony).  One way to enforce such an order is via the court’s contempt powers.   If an obligor (party which owes the support) fails to pay the support as court-ordered, the one owed the support (obligee) may file a Motion For Civil Contempt.  At the hearing on the Motion, the Court will follow a two-step procedure for establishing civil contempt.  First, the court will determine whether the obligor has willfully violated the court order(s); and, if so, the court must then determine an appropriate remedy, which may include incarceration.  If incarceration is the remedy, then the court must make a separate, affirmative finding that the obligor has the present ability to pay a purge.  Bowen v. Bowen, 471 So.2d 1274, 1278- 1279 (Fla. 1985).

Hypothetical # 1:  Husband is ordered to pay to Wife the amount of $ 1,000.00 per month as permanent periodic alimony.  At the time of the court order, the Husband’s net income is approximately $ 4,000.00 per month; the Wife’s net income is about $ 1,000.00 per month.   Two years later, the now Former Husband loses his job through no fault of his own and undergoes a diligent job search to find comparable employment (for approximately 90 days).  During the 90 day period, the Former Husband pays his Former Wife the amount of $ 600 per month out of his savings and his unemployment compensation.   Is the Former Husband in contempt?  Answer, he may be in technical contempt since he has failed to pay the court ordered amount but may not be in “willful” contempt since he has made a best faith effort to pay his obligation out of his available financial resources.  

Hypothetical # 2:   What if the Former Husband in hypothetical # 1, above, voluntarily resigned from his position.  Let’s further assume that the Former Husband is also currently residing with his paramour and he is assisting her with her expenses, such as her mortgage and car payment.  Let’s further add that the Former Husband’s parent(s) have historically assisted him with all of his obligations such as his car payments, mortgage payments, and additional amounts for legal fees, all of which are significantly greater than his support obligation to his Former Wife.  The Former Husband refuses to pay his support obligation since he is unemployed and has no income.  Further, the Former Husband has a house and a car, both of which are worth less than is owed.   Is the Former Husband in contempt?   Answer, under this fact pattern and assuming the Former Husband has not made any effort to obtain employment or pay any of his obligation, then the court may hold that the Former Husband is in ‘willful’ contempt of court and may order his incarceration.  

In the forgoing hypothetical, the court may order incarceration in order to obtain compliance of the Former Husband with it’s prior court order (of spousal support).  In so doing, let’s say the court finds that the Former Husband’s paramour and parent(s) have the ability to assist him with a “purge” amount in the amount of $ 10,000.00.    The Court did not make any findings that the Former Husband, himself, has the income or assets in which to pay a purge amount.  Can the court do this?   The general rule is that the court cannot base one’s present ability to pay a purge on the prior assistance and/ or available resources of family or friends.  However, certain case law does set out circumstances justifying an exception to this rule.   The “exception” usually involves assistance by third persons in amounts much greater than the amount owed by the obligor to the other spouse and/ or the obligor was perpetrating a fraud on the court by concealing, dissipating or transfering assets to avoid payment not to mention his or her voluntary resignation from a job to avoid paying the support obligation.  

In any event, prior to any hearing on such a Motion (for civil contempt), I would recommend that the party seeking enforcement use “discovery” in order to obtain information as to the obligor’s present ability to pay a purge amount.   Such discovery tools may include interrogatories or requests to produce (financial information such as bank records, income information, etc.).  You may also take the obligor’s deposition to learn further about non-exempt assets and/or any transfers of property since the date of the subject court order.

*** The foregoing is not intended as legal advice.  If you have any additional questions or comments, feel free to either post a comment/ response or contact my Office for a free, initial consultation to discuss the particulars of your situation.

Child support is established in accordance with section 61.30, Florida Statutes (the child support guidelines).   Generally, a parent’s child support obligation is based primarily on both parents’ respective incomes and is calculated using a formula set out under section 61.30, F.S.    For example, let’s say Father takes home (net) $ 2,000 per month; and Mother takes homes (net) $ 2,000 per month, for a total combined available income of $ 4,000.00 per month.  If the parties have two children together, then the basic guideline support amount for the two children is: $ 1,288.00 per month, of which each party is responsible for 50% (both parents earn $ 2,000 each for a combined $ 4,000), or $ 644.00 per month.   This is the parents’ basic obligation for the support and maintenance of their children (and same is to be applied towards the children’s share of the living and household expenses such as rent/ mortgage, utilities, food, gas for the car, etc.).

What does “child support consist of?”  As explained above, child support includes the basic obligation of both parents towards the child’s (ren’s) living expenses.   I usually describe “child support” liking baking a cake . . . different ingredients go into the baking of a cake.  The first ingredient is the basic obligation.  Then, we add “health insurance” and uncovered or non-reimbursed expenses.  Generally, a parent’s share of the health insurance premiums for the child’s (ren’s) coverage is based on the guidelines.  For example, if the Father has a net monthly take home of $ 3,000 and the Mother has a net monthly of $ 2,000, then the Father’s share of the premiums and any uncovered expenses would be 60% ($ 3,000 divided by the combined $ 5,000, or 60%).   Another ingredient in the child support “cake” is: day and/ or after care.  If a parent has to work or is in school, and as a result the child(ren) has to be put into daycare, then both parents have to contribute towards this expense.  However, the total amount of the daycare (or aftercare) expense is first reduced by 25% (the parent receiving the Earned Income Credit pays is, in essence, responsible for the first 25%), and then the parents share the remaining 75% of this expense pursuant to their respective guideline share.  Some children may have special needs, which is yet another ingredient, so to speak, of child support.

What if a parent is unemployed.  Does he or she have to pay any child support?  How can you calculate his or her child support obligation if the parent is unemployed?   Both parents have a continuing obligation to support their child(ren).    This obligation does not go away if a parent becomes unemployed even if through no fault of his or her own.   If that parent receives benefits such as unemployment, then he or she must pay a percentage of the benefit towards support.  Further, the unemployed parent must undergo a diligent job search to find employment earning comparable pay to that level prior to being let go/ terminated.   Let’s say the Father is court ordered to pay $ 750.00 per month in child support for the care of the parties’ two minor children but then loses his job due to poor economic times.   The Father then pounds the pavement to find work through a variety of sources including job fairs, but is unable to find any emploment within 30 days and he has not yet received his first unemployment check.  The Father misses a child support payment.  Is he in contempt?  Maybe, he is technically in contempt because the Court ordered him to pay $ 750.00 and he paid nothing.  However, let’s assume arguendo that he did not voluntarily resign from his job;  he can prove he’s been looking for work;   he has not yet received his first unemployment check:  and he has no savings or liquid funds in which to pay any support.  If this be the case, I would argue fervently that my client is not willfully violating the court order of support. 

Imputing Income:   What if the Father, in the example above, decides to pursue his dream and opens up a business opportunity or takes a job making much less than he is capable of earning (according to the Mother).    After a period of time of opening up his business, the Father files for a downward modification of his child support because he is not making what he previously was earning.  Will he prevail?  In my opinion, without more facts, I would say no.   I would argue that the Father is voluntarily under- or unemployed and that his prior level of income should be “imputed” to him.  A court can impute income to a parent if he or she is voluntarily under- or unemployed.  Basically put, if the voluntarily under-employed/ unemployed parent is earning $ 20,000 per year but was recently earning $ 60,000 per year, then the court may calculate that parent’s child support obligation as if he were earning $ 60,000 per year.    In order to impute income, the other parent must prove up the under-employed (or unemployed) parent’s recent work history and earnings, qualifications and credentials and the availability of jobs at that earning level in the local community.

If you have any questions, please reply and inquire.  Every case is unique and dependent on it’s own particulars.  The foregoing is NOT intended as legal advice.

Florida law provides that a presumption of entitlement to alimony arises in long term marriages. This presumption does not mean that the spouse purporting to be in need automatically receives alimony in a long term marriage.  Even in long term marriages (which are defined by the 2nd District Court of Appeal, including Pinellas/ Paso, Hillsborough and Manatee Counties, as one of at least 15 years’ duration), the Court will evaluate both the ”need” (for the support) and the “ability” (to contribute towards same). In so doing, the Court will evaluate a variety of factors which are set out in section 61.08, Florida Statutes, including:  (a) the standard of living;  (b) duration of the parties’ marriage;  (c) the age and health of the parties;  (d) the financial resources of the parties (including non-marital assets);  (e) in certain instances, the time necessary for either party to acquire sufficient education or training to enable him or her to find appropriate employment; (f) the contribution of each party to the marriage, including considerations of homemaking and child rearing; and (g) all sources of income available to either party. Section 61.08(2)(a)- (g), F.S. 

Generally, in a long term marriage, if the spouse with the perceived ability to pay does not rebut the presumption (of entitlement), and the other spouse has a demonstrable need for support , then the court may award permanent periodic alimony (there are other types of alimony but this post will deal primarily with “permanent periodic”).  The amount of support will be based primarily on the receiving spouse’s need, which takes into consideration such expenses as household and living expenes (rent or mortgage, utilities, phone, food, gas); insurances (car, health); and even items based on standard of living considerations (vacations, entertainment, grooming, clothing).   However, the court must also evaluate the other spouse’s ability to so contrnot award support in an amount that leaves the other spouse without an ability to meet his or her own reasonable living and household expenses or otherwise destitute. Case law also states that the courts must not simply “equalize” the parties’ incomes but must consider the factors set out in section 61.08(2), F.S. and the other spouse’s true need for the amount of support.  

Determining need and ability gets murky in situations in which one party (or both) is (are) voluntarily under- or un-employed. Let’s say that the Wife worked during the parties’ long term marriage except for two brief periods of maternity leave.  During the Marriage, and as recent as two years ago, the Wife was earning upwards to $50,000 gross annual salary with benefits. This is the most she ever earned during the Marriage. She is 42 years of age, good health and has a college degree. The Husband is currently earning approximately $75,000 gross annual with benefits. The parties’ two children are minors but both are in school. Two years ago, the Wife decided to pursue a business opportunity which would provide her flexibility of scheduling so she could spend more time with the children.  Unfortunately, during the past two years, the Wife has not generated enough gross receipts in order to pay herself a salary from this business. The Husband is now the sole source of support for the family. A divorce proceeding is instituted and the Wife requests, among other claims, permanent periodic alimony. Will she prevail?  What can the Husband do to mitigate? Assuming the parties’ marriage is long term, the Wife has a present need and the Husband has some ability to so contribute, I believe the Wife can legitimately claim permanent periodic alimony. However, the Husband may argue that the Wife is (and remains) voluntarily under-employed and has a comparable earning capacity to him. In this instance, the Husband would have the burden of proving that the Wife has a recent work history and job qualifications to obtain comparable employment with comparable pay in the local community. One way to prove up that the Wife is voluntary under-employed is to enlist the services of an expert vocational rehabilitation specialist/ evaluator.

All sources of income are to be considered in determining one’s ability to contribute towards the other spouse’s support and/ or the other spouse’s need for support. For example, if the spouse with a perceived ability to pay owns a closely held corporation (let’s say, he or she is the only owner), and an approximate $ 10,000 of ordinary income is in the business’ account at the end of the quarter, is this amount to be considered in determining that spouse’s ability to pay? What if the spouse who is seeking permanent periodic alimony is earning interest and/ or receiving dividends on his or her investments or is receiving other income of a recurring nature, such as from a family member? These are facts that must be explored by the attorney as part of the mandatory disclosure requirement (namely, both parties must provide financial information in the form of pay stubs or other evidence of income; bank records; statements of account; etc.).  Sometimes, an expert CPA may be enlisted to perform a forensic accounting, which would include a determination of the sources of income, any concealment of income, transfers of assets for less than fair market value, and the nature of expenditures (for example, is one’s business paying for personal expenses). 

Alimony may be subject to modification, up or down.  In order to obtain a modification, the one requesting same must prove that a substantial change(s) in circumstance has (have) arisen warranting a modification.   What constitutes a substantial change in circumstance warranting modification?  Each case is unique and is dependent on it’s own particulars. Simply being let go from a job is a change but may not prove to be a “substantial” change if same is not a permanent loss of employment or income potential. Being injured on the job and temporarily unable to work may also not be a permanent loss warranting a modification. Let’s say the obligor spouse loses his job through no fault of his own (the company he worked for downsized due to bad economic times).   He was making $ 60,000 per year at the time he was let go.  Subsequent to termination, the former husband undertakes a diligent job search looking for a position with comparable pay but is only able to find work within the range of $ 32,000 to $ 40,000 per year without benefits. If, arguendo, the former husband was diligent in his pursuit of a job, then this fact pattern may warrant a downward modification of his support obligation.   On the flip side, what if the former wife enters into a “supportive relationship” and is less in need.  This, too, may amount to a situation in which the obligor may seek a downward modification. The case law defining what constitutes a “supportive relationship” is across the board but Florida law does provide for a downward modification (or termination, if applicable) in such instances.  

For more information, please feel free to inquire. The foregoing IS NOT intended as legal advice or a representation. If you are in need of legal advice, please feel free to inquire by calling 727-895-5858. I do provide a free initial consultation.

Florida Law does provide for situations involving Parental Relocation (of a “parent” with his or her child(ren)). 

First, one must determine if he or she is a “parent” entitled to time sharing with the Child.  Generally, if a child is born to an intact marriage, then the Wife and Husband are the legal parents of that Child.  If a child is born out-of-wedlock (Mother not married to Father), then the Mother is the natural guardian of the Child and, if the Father signs the child’s birth certificate, then he, too, is a legal parent.   Next, a determination has to be made whether the relocating parent is entitled to time sharing with the Child.  Let’s assume the Father signed the child’s birth certificate and is then afforded temporary time sharing with the Child pursuant to a court order.    Most of the overnights are between Mother and Child.  After the court order is entered, the Mother then serves upon the Father a Notice Of Intent To Relocate With A Child.   Accordingly, the Mother wants to move out-of-state with the parties’ child so she can be closer with her family, who will be able to financially assist her and share in daily child care.    What happens?

The Mother’s Notice must comply with the statutory requirements of section 61.13001(3), Florida Statutes.   The Notice must set forth certain matter including: (1)  a description of the location of the intended new residence, including the physical address, city and state; (2)  the mailing address if different then the physcial address; (3)  the home telephone number of the intended new residence, if known; (4)  the date of the intended move or proposed relocation; (5)  a detailed statement of the specific reasons for the proposed relocation, inlcuding as an attachment, any job offers reduced to writing;  and (6)  a proposal for the revised postrelocation schedule or time-sharing together with a proposal for the postrelocation transportation arrangements necessary to effectuate the proposed time-sharing.  The Wife will also need to include the prescribed statement setting forth the Father’s right to object. 

If the Father objects, he must do so in writing, verified, and serve same within 30 days after service of the Mother’s Notice.  The objection must set forth a specific factual basis supporting his request to prohibit the relocation of the Child, including a statement of the amount of participation or involvement the Father currently has or has had with his child.  Section 61.13001(5), Florida Statutes.  

Upon objecting, the Mother will then have the initial burden of proving that the relocation is in the child’s best interests.  Since the current order is “temporary”, then a case is pending.   The Mother would then need to move the Court for permission to relocate.  If the prior court proceeding was concluded (and a Final Judgment was entered setting forth the time sharing arrangement), then the Mother will need to initiate a post-judgment proceeding seeking permission to relocate with the Child.   A hearing on the Mother’s request will be afforded priority on the Court’s calendar.

At a hearing, the Court will evaluate a series of factors in reaching a conclusion on the relocation request.  Let’s assume the Father has been exercising regular time sharing with the child pursuant to the court’s order; that the Father is current with his child support obligation or in substantial compliance; the Mother will be earning just as much at the intended destination as she is able to do here; and neither parent is able to afford the costs of transportation.  If this is the case, then the Court may consider denying the request even though the Mother has family to assist her.  On the other hand, if the relocation “will enhance the general quality of life for both the parent seeking the relocation and the child”, then the Court may consider such a request.  Section 61.13001(7), Florida Statutes.  In this event, the Court may order contact with the child and nonrelocating parent to include time sharing “sufficient to ensure that the child has frequent, continuing, and meaningful contact . . . with the nonrelocating parent”.  Section 61.13001(9), Florida Statutes.

THE FOREGOING IS NOT INTENDED AS LEGAL ADVICE.  If you have any questions or are in need of legal advice, then please feel free to reply to this posting and/ or contact my Office at 727/ 895-5858 for additional information.