Many individuals in Florida may be surprised to learn that a court can be asked to order child support even if there is no divorce or paternity action filed. Spouses who are residing in Florida and who are apart from the other spouse and child may request a Florida court determine his or her financial support obligation as to the spouse’s child. Upon such a request, a court will examine the financial situation of the requesting party and then determine what that person’s child support obligation is to his or her child (or if any obligation exists at all). A court will determine this obligation regardless of the reasons why the spouse is separated from his or her spouse and child. In other words, it does not matter if the spouse residing in Florida apart from the other spouse was at fault for the separation or whether the other spouse was responsible for the separation.
The statute authorizes a spouse to ask a court to not only determine his or her obligation toward a child but also toward the other spouse. A court will do this in the same general manner as the court determines the obligation toward the child. The court will examine the financial situation of the requesting spouse and then enter an order setting the amount of the obligation. As is true with requests to determine a child support obligation, the court can also find that a party has no obligation to support his or her spouse.
Under this statute, there is no requirement for the requesting spouse to have filed a divorce or paternity action. Similarly, there is no requirement that a divorce or paternity action have been commenced against the requesting spouse. In fact, a divorce or paternity action can be commenced any time after a spouse has requested the court to determine his or her child support or spousal support obligation under this statute.
Why might a spouse want a court to determine his or her child support obligation under this method as opposed to bringing a divorce or paternity action? Obviously, if the parties are separated but the requesting spouse does not wish to file for divorce, this method may provide a good compromise by allowing the parties to remain married but still giving the spouse custody over the child support payments to help support the child. Or the requesting spouse may have attempted to negotiate a child support payment with the other spouse but the other spouse has refused to cooperate or turn over any information necessary to calculate such payments under the traditional method. Or perhaps the requesting spouse has deemed it more advantageous to have the child support obligation calculated under this method as opposed to the traditional method. An order entered pursuant to this method could only be changed after showing there has been a substantial change in circumstance.
It is important to note that only the spouse who is living in Florida apart from the other spouse and child can petition the court for such a determination. If the spouse who has custody of the child wishes for a court to impose a child support obligation on the other spouse, he or she must file a divorce or paternity action.
It is also important to note that a spouse who is otherwise eligible to request the court for a child support obligation may not ask for a court to determine his or her child support obligation if there is already a pending divorce or paternity action. In other words, a spouse cannot be a party to a divorce action (in which child support would be determined) and request that a court determine his or her child support obligation under this statute.
A determination of child support is a frequent feature of many Florida divorces. Child support in Florida is determined according to a formula that is set forth in the Florida child support guidelines. Under this formula, a court considers the net income of both of the parties as well as the number of children of the parties’ marriage. Using this information, the court consults the child support guidelines for the appropriate total child support obligation amount for the parties. The parties then share this obligation amount in the same proportion as their contribution to the overall total net income figure.
In many cases, when a party initially files a divorce or paternity action they also ask the court to set a temporary child support amount. This is meant to provide the requesting spouse with some monetary resources with which to support the child or children while the divorce or paternity action is pending. At the final hearing on the divorce or paternity petition, the court will then set a more permanent child support amount based on its findings related to the custody of the child and the financial situation of the parties. These orders can then be reviewed and, if necessary, modified after a certain number of years or when there is a substantial change in the parties financial circumstances (such as a promotion or job loss).
In some cases, a party who is residing in Florida away from his or her other spouse and child can petition a Florida court to determine a child support obligation amount so long as there is no pending divorce or paternity action to which the requesting spouse is a party. This option is not available to the spouse who has custody of the child. Upon request, the court will consider the financial circumstances of the requesting party and establish a child support obligation amount. This amount can then be later modified if the circumstances warrant such a change. In addition, seeking the establishment of a child support obligation under this method does not preclude the requesting spouse from later filing a divorce or paternity action if he or she chooses.
While the basics of Florida child support law are relatively easy to understand, there are various nuances in the law that can be difficult to apply. Consulting with an experienced Ayo and Iken Florida child support attorney is advisable so that divorcing parents understand their rights and have the best possible chance of achieving their objectives and goals as they relate to child support.