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Note: Robert Hannan was formerly a government Child Support and Alimony enforcement
Attorney who was responsible for the establishment, modification and enforcement
of over 30,000 cases in Broward and Dade County.
As a former government child-support
prosecutor for what is now known as the Department of Revenue, Mr. Hannan
has handled literally thousands of child support cases. Mr. Hannan not
only represented what is currently known as Department of Revenue, Child
Support Enforcement Division, he also prosecuted child support cases on
behalf of the Broward County Support Enforcement Division as well as the
Miami-Dade County State Attorneys’ office.
Payment of child-support in the state of Florida is mandated under Florida
law. Parties cannot even agree to waive child support as the right to
support basically belongs to the child or children. Marriage is irrelevant
when it comes to the issue of child support.
The calculations required to determine child-support
are the same, regardless of whether the child was conceived during a
very short-term relationship, including a very brief encounter, or whether
the child was conceived during a long-term marriage. |
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The law treats the child exactly the same as
it concerns child-support. The
only difference may entail the question of paternity when a child is born
out of wedlock. As a general proposition, paternity is rather simple to determine
with the advent of DNA testing.
The Child support amount is established generally by
the use and application of the Florida State child support guidelines. The
guidelines represent a presumptive amount of support to be paid by the payor
parent or spouse to the recipient parent or spouse. The guideline amount
of child support is basically determined by looking at a grid which represents
combined net monthly incomes of the parents and the number of children. When
determining the amount of income to be applied to the grid, certain items
are deductible from gross income such as: income taxes, Social Security deductions,
mandatory union dues and the like. What is not deductible are items such
as your rent or mortgage, your electric bill, auto expenses, and the like.
In other words the view is that child support should be paid before all of
your other expenses, except those listed above. Deviations from the child
support guidelines can be given to the payor spouse or parent based on items
such as when the child or children spend 40% or more of the overnights with
the parent or spouse who has the obligation to pay child support. There are
other issues which can create a basis to deviate from the child support guidelines.
Once the child support amount is established it is often deducted directly
from the payor parent or spouse’s paycheck. The
child support is generally directed to be paid through the FDLSU, which is
a state agency that acts as a clearinghouse for all payments.
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Generally any parent who cares for a child in
the state of Florida who is not receiving financial assistance from the
other parent, who lives elsewhere, can apply to the Department of Revenue,
Child Support Enforcement, which will establish and enforce child support
for the parent who is taking care of the child.
The Department of Revenue
basically acts as an arm of the federal agency of the Department of Health
and Human Services. The Department of Revenue in Broward County is represented
by the state Attorney General and cases are handled in court by Assistant
Attorney Generals. |
They
establish and enforce hundreds of child support cases monthly in court proceedings.
The Department of Revenue has the ability, and very often does, convince
child support hearing officers or Circuit Court judges, that a non-paying
parent or spouse is in contempt of court for their unwillingness to pay child
support as previously court-ordered. The hearing officer has the ability
to order jail time if child support payments are not made. This is often
done by way of ordering a “purge” after
the non-paying spouse is found in contempt of court. The Department of Revenue
can and does suspend the driver’s license of the non-paying parent or
spouse and intercepts Internal Revenue Service tax refunds to pay the unpaid
support obligation. It is not a good idea to walk into a Department of Revenue
child support hearing without an attorney. Within the courtroom, there is a
judge or Hearing Officer, a bailiff, an Assistant Attorney General, a Department
of Revenue case worker and you. Before you realize the hearing is underway
the hearing is already is winding down with a flurry of activity. You are handed
a small piece of paper telling you how much you need to pay and where to pay
it, along with the warning to make these payments until you see the amount
coming out of your paycheck.
The case just outlined is an initial
determination of paternity and support. A motion for contempt happens just as fast and one wrong
statement may seal your fate in a bad way. This is not to say that the
Department of Revenue is underhanded, they are not, but rather a cautionary
note that the Department handles 10 or more cases per court session and
they move their cases very fast and in a very routine fashion. To the Department,
it is business as usual, but to the unknowing “Respondent,” it
is often a case of “what just happened?” Not knowing
what to say and when to say it can lead to a result that marks the beginning
of a very bad experience. |
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As to the “purge” previously
mentioned, purge is basically a method by which a non-paying spouse is given
the ability to “purge” him
or herself of a finding of contempt in order to stay out of jail. Before
a nonpaying parent or spouse can be ordered to pay a purge, the hearing officer,
or judge, must find that the nonpaying spouse or parent has the present ability
to pay the purge. Being found in civil contempt is not a criminal proceeding.
If you are found in contempt, you are not being charged with a crime. Civil
contempt is a method developed under the law to enforce compliance with a Court
order. It is still the law of this country that an individual cannot be incarcerated
for a debt, however, when it comes to child support, the law has carved out
an exception by labeling child-support as an obligation to society and not
a “debt” in the classic sense.
Child support obligations can be modified if there has been an involuntary,
substantial, unanticipated and permanent change of circumstances since the
Judge signed the Court order establishing the child support obligation. If
you quit your job and figure, since you have no income, you cannot be required
to pay your child support, you have made a huge error.
The reason is simple, the change in circumstances, quitting your job, was a
voluntary act. A classic case for modification would be that your company went
out of business and despite best efforts you have been unable to secure the
same kind of work at the same pay rate. In today’s economy, the
judges and hearing officers are well-aware of the dismal economy and the chances
of reducing your child-support, or for that matter, your alimony obligation
is better than it has been in many years. However, you still must meet the
general legal requirement. The difference now is that the judiciary is less
skeptical as it was in prior years with a story of your dire straits.
If you have been served with a motion for contempt, take it seriously. If you
decide to simply decide to not show up at the hearing after you were given
notice of the hearing, the court can and usually does issue a writ of bodily
attachment. In simple terms, this is an arrest warrant. If you get pulled over
for an expired tag, that simple matter may spin out of control once the officer
calls in your license.
On the other hand, if you are seeking payment of support after it has been
ordered by a judge, a hearing can be set rather quickly before either a hearing
officer or judge at which time the nonpaying parent or spouse had better prove
that he or she has been paying to the best of their ability. Failing that,
the nonpaying parent or spouse may very well be held in contempt and ordered
to pay a purge which represents a portion of all unpaid support, or, go to
jail for up to 179 days or until the purge is paid. But again, the judge must
find that the nonpaying parent or spouse has the present ability to pay the
purge. The “present ability” may be “found” in assets
which may he sold such as a car, electronics, or jewelry. Ideally, the nonpaying
spouse would simply have money in a bank in an amount sufficient to pay the
unpaid support. In this case, the nonpaying spouse would be ordered to pay
a purge to stay out of jail and the amount of the purge payment would be the
money in the bank. If the payment were made immediately, the person would avoid
jail as he or she paid the purge.
When faced with the possibility or reality of dealing with a child-support
matter, it is imperative that you consult with an experienced child-support
attorney. Mr. Hannan would be pleased to consult with you over the telephone
or in-person regarding your particular situation.
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