Child Support

1. Child Support Part 1 - Jurisdiction

2. Constitutional requirements • Does asserting child support jurisdiction over a non-resident defendant meet International Shoe “minimum contacts”? • Is the assertion of jurisdiction consistent with “traditional notions of fair play and substantial justice”?

3. General vs Specific Jurisdiction • General: Are the defendant’s activities in the state “continuous and systematic”? If so, state may assert general jurisdiction • Specific: Did the defendant “purposefully direct” his/her activities at the residents of the forum state and the injuries to those residents arose out of or relate to those activities?

4. Parker v Alaska Dept of Revenue • Single act of sexual intercourse in that forum state can provide that state with specific jurisdiction over non-resident defendant for determination of paternity and child support • A person engaging in sexual intercourse should foresee the possibility that a child might be conceived and born, and that a support action might be filed

5. Uniform Interstate Family Support Act (UIFSA) • Adopted by every state • Replaced older statutes such as the Uniform Reciprocal Enforcement of Support Act (URESA) • URESA was a “de novo” statute that allowed responding state to modify original order, not just enforce • UIFSA is a “continuing exclusive jurisdiction” statute allowing enforcement, but not generally modification

6. Two types of UIFSA cases • One State: Provides for “long-arm” personal jurisdiction over non-resident defendants if constitutional requirements are met (“one state” actions) • Two State: Allows “two state” actions if personal jurisdiction cannot be obtained in forum state. Initiate where child resides, then “transmute” the action to the state where defendant resides

7. UIFSA basis for “one-state” jurisdiction (Fl. Stat. § 88.2011) • The individual is personally served with citation, summons, or notice within this state • The individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction • The individual resided with the child in this state • The individual resided in this state and provided prenatal expenses or support for the child

8. UIFSA “one state” jurisdiction (Continued) • The child resides in this state as a result of the acts or directives of the individual (is this constitutional?) • The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse • The individual asserted parentage in a tribunal or in a putative father registry maintained in this state by the appropriate agency, or • There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction

9. How interpreted? • Basing UIFSA jurisdiction on the father's mere acquiescence to his child remaining in Florida violates the Due Process Clause of the Fourteenth Amendment. Wright v Lewis, 849 So.2d. 379 (Fla. 4th DCA 2003)

10. Two-State Jurisdictional Issues • State issuing child support order retains continuing exclusive jurisdiction over the order as long as either the obligee, the obligor, or the child resides in the issuing state • Parties who are individuals (not a state agency) may file written consents with the issuing court allowing a court of another state to modify the order and assume continuing exclusive jurisdiction

11. Two State Process – Initiating State • An individual or support enforcement agency files an action to determine paternity or to establish, modify, or enforce a support order • Court of initiating state forwards three copies of petition to responding state where the defendant resides • Merely a ministerial act, no adjudication takes place in initiating state

12. Two State Process – Responding State • Receives petition from initiating state and serves defendant by First Class Mail • Conduct hearing and determine duty of support and amount payable in accordance with responding state’s law and support guidelines, enter order • Except in cases of modification of existing order from initiating state, when law from initiating state is applied

13. Jurisdiction for Retroactive Support Orders • The 1998 enactment of Fla. Stat. 61.30(17) modified prior case law. • The statute provides that "the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition."

14. Child Support Part 2 – Support Determination

15. Purpose of child support? • Meet child’s subsistence or minimal level needs • This view has been universally rejected • Support the child consistent with a standard of living based on the incomes of the parents • Underlying assumption of all guideline models

16. Historical standard for child support • Meet the needs of the child • Within the parents’ ability to pay • Many states and local courts had informal guidelines or “rules of thumb” that were not mandatory or presumptive

17. Modern standard: Guidelines • Every state has a guideline • There are several guideline types or models • Support is presumptively set based on guideline • Deviation from guideline rare, must make written finding showing why guideline amount is “unjust or inequitable”

18. Why guidelines? The federal mandate • Congress determined that overall support levels were too low and there was too much case to case variation based similar facts • Congress issued mandates: • First - that each state develop and implement a statewide guideline • Second – that the statewide guideline be presumptive for both establishing and modifying support orders

19. Benefits of Guidelines • Increase support levels so they more accurately reflect the true cost of raising children • Make support orders more equitable by reducing differences between orders on similar facts • Reduce the adversarial nature of support proceedings and encourage settlements due to greater predictability • Ease the burden on the courts by streamlining the decision-making process

20. Guideline Models • Income Shares • Percentage of Income • Melson (Delaware) • Cassetty

21. Income Shares • Most common guideline (FL and a majority of other states) • Child should receive the same proportion of total parental income as he/she would have received if the family were intact (two parent household)

22. Income Shares Methodology • Determine total combined incomes of both parents • Use economic data to determine what percentage of total family income is spend on a child at the relevant total family income level • Multiply that percentage by total family income to determine the total support amount for the child • Apportion that support between the parents based on a ratio of their respective incomes

23. Income Shares Example • Mom makes $4000 net per month • Dad makes $2000 net per month Total Family Income is $6000 per month • Assume that the economic data shows that families with $6000 in net monthly income spend 20% of that income on one child, or $1200 per month • Apportion that $1200 support amount between the parties based on a ratio of their incomes • Mom pays $800 • Dad pays $400

24. The underlying economic data • Thomas Espenshade, New Estimates of Parental Expenditures (1984) • Robert Williams, “Guidelines for Setting Levels of Child Support Orders” Both Espenshade’s book and Williams’ article are based on Department of Agriculture data from the 1980’s

25. Common threads in underlying data • As income goes up, the percentage of income spent on children declines • As the number of children in the family increases, the percentage of income spent on each child decreases

26. Fixed Percentage (Wisconsin) Guideline Model • This is the method most states used, formally or informally, before the federal government mandated guidelines • Support is set at a fixed percentage of the non-custodial parent’s income • Percentage varies with number of children in the family, but not with income

27. Melson (Delaware) Formula • Named for its developer, Judge Edward Melson, a family court judge in Delaware • Allows parents to keep enough income to meet basic needs (to avoid destroying the incentive to work) • All income above parents’ basic needs goes to child support until child’s basic needs are met • Once child’s basic needs are met, all additional parental income is shared with the children so they can benefit from the parents’ increased standard of living

28. Melson Methodology • Determine each parent’s “net available income,” which is net income after subtraction of a basic needs allowance • Determine the child’s subsistence level support needs • Prorate the child’s needs between the parents based on a ratio of the parents’ respective net available incomes • Use a “Standard of Living Allowance” or SOLA to determine what percentage of the each parent’s remaining income is allocated to child support

29. Melson Example • Mom makes $4000 per month • Dad makes $2000 per month • Each parent has a $1000 monthly basic needs allowance, leaving Mom with $3000 of income available for support and Dad with $1000 available for support

30. Melson Example (Continued) • Child has basic support need of $250 per month, which is apportioned between Mom and Dad based on ratio of net available income • Mom has $3000 (75%) and Dad has $1000 (25%), so Mom pays $187.50 and Dad pays $62.50

31. Melson Example (Concluded) • Apply Standard of Living Allowance (SOLA) to remaining income of each parent • SOLA for one child is 15% • Applying 15% SOLA to Mom’s remaining income of $2,812.50 ($3,000 less basic child support of $187.50) adds another $421.88 to her monthly support, for a total of $609.38 • Applying 15% SOLA to Dad;s remaining income of $937.50 ($1,000 less basic child support of $62.50) adds another $140.63 to his monthly support, for a total of $203.13

32. Cassetty (Income Equalization) Model • Most radical approach of the four models • Not in use anywhere • Goal is to provide equivalent living standards in the two post-divorce households

33. Cassetty Methodology • Exempt from the net incomes of each parent enough income to support that parent’s post-divorce household at the poverty level (similar to Melson) • Apportion all remain family income between the two households based on the number of persons in each post-divorce household

34. Cassetty Example • Mom makes $4,000 net per month and lives alone post-divorce • Dad makes $2,000 net per month and has custody of the two children • 2005 federal poverty level is $798 for a family of one and $1,341 for family of three • Dad has $659 above poverty level and Mom has $3,202, for a total of $3,861 • Dad gets 75% ($2,895) of the $3,861 and Mom gets 25% ($965.25) of the $3,861, which results in Mom paying Dad $2,236.75 per month

35. Comparison of the four models • Income Shares guidelines tend to depress child support levels at high incomes and increase it at very low incomes • Melson tends to increase child support at high incomes, but reduce it at very low incomes • Cassetty increases support at moderate and high incomes • Fixed percentage tends to increase child support at high incomes, unless the guideline has a cap

36. Child Support Part 3 – Determining Support in Florida

37. Duty to support children • The court may require either or both parents to pay support in accordance with the guidelines, whether the child is born in or outside of marriage • Every child support order must contain a provision for health insurance for the child when insurance is reasonably available • The cost of health care coverage and uncovered expenses is apportioned between the parents based on a ratio of incomes • Parent cannot bargain away a child’s right to support

38. When does that duty end? • Support typically ends at the age of majority (18) • A court may order child support beyond the age of majority if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school performing in good faith with a reasonable expectation of graduation before the age of 19 • If there is a reasonable expectation of graduation within a short time period after a child's 19th birthday, child support may be ordered beyond age 19

39. What about college expenses? • The court cannot order a parent to finance a child's college education. Grapin v. Grapin, 450 So. 2d 853 (Fla. 1984) • But parties may contract in their Marital Settlement Agreements to provide for college education or other support beyond majority • These contracts are enforceable by the court. Finn v. Finn, 312 So. 2d 726 (Fla. 1975), McIlmoil v. McIlmoil, 784 So. 2d 557 (Fla. 1st DCA 2001)

40. Death of the Obligor? • States are split on this issue

41. Florida’s Income Shares Guideline • Florida's child support guidelines contain a schedule of support based upon a combined net income of up to $10,000 a month • The schedule is found at Fla. Stat. § 61.30 • Variations of up to 5% above or below the scheduled amount are permitted without triggering a finding of “deviation”

42. High income cases • For incomes exceeding the $10,000 schedule ceiling, the amount of support determined by the schedule should be added to the excess income multiplied by: • 5% for one child • 7.5% for two children • 9.5% for three children • 11 % for four children • 12% for five children • 12.5% for six children

43. Determining Monthly Net Income • Need to first determine gross income including everything in the guideline statute, Fla. Stat. §61.30(2)(a) • Then subtract those deductions allowable under the guideline statute, Fla. Stat. §61.30(3) • Not the same as tax code deductions

44. What is included in gross income for child support purposes? • Salary or wages • Bonuses, commissions, allowances, overtime, tips, and other similar payments • Business income from sources such as self-employment, partnerships, close corporations, and independent contracts • Disability benefits • Worker's compensation • Unemployment compensation • Pension, retirement, or annuity payments • Social security benefits

45. Also included in gross income for child support: • Spousal support received from a previous marriage or court ordered in the marriage before the court • Interest and dividends • Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income. • Income from royalties, trusts, or estates. • Reimbursed expenses or in-kind payments to the extent that they reduce living expenses. Per diem expenses are not included. Allowances for travel, housing, and vehicle or gas are included. • Gifts, which are continuing and regular in both amount and timing • Gains derived from dealings in property, unless the gain is nonrecurring

46. What is deducted from gross income to determine net income for child support? • Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and income tax liabilities • Federal insurance contributions or self-employment tax • Mandatory union dues • Mandatory retirement payments • Health insurance payments, excluding payments for coverage of the minor child • Court-ordered child support for other children which is actually paid • Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court

47. Sample Florida Income Shares Support Calculation • Mom has $4,000 net monthly income • Dad has $2,000 net monthly income • Total of $6,000 net monthly income results in a total basic support obligation of $1,121 for one child (see statutory table or worksheet) • That is apportioned between the parents based on a ratio of their incomes. • Mom’s support obligation is 67% x $1,121, or $751.07, if Dad has custody. • Dad’s support obligation is 33% of $1,121, or $369.93 if Mom has custody.

48. Court can also consider other factors as provided in Fla. Stat. §61.30(11)(a) to “Deviate” from guideline amount: • The existence or expectation of extraordinary medical, psychological, educational or dental expense • Independent income of the child, not including supplemental social security income received on the child's account • Payment for support of a parent which regularly has been paid and for which there is a demonstrable need • Seasonal variations in one or both parent's income or expenses • The age of the child, taking into account the greater needs of older children • Special needs that have been traditionally met within the family budget even though fulfilling those needs will cause the support to exceed the guidelines • Total available assets of the obligor, obligee, and the child

49. Other deviation factors: • Impact of the IRS dependency exemption and the waiver of same. (The court has jurisdiction to order a party to execute a waiver to the other) • Where the guidelines would require a person to pay more than 55 percent of his gross income for a child support obligation for current support resulting from a single support order • Where the child spends a significant amount of time, but less than 40% of overnights, or. refusal of the non-custodial parent to become involved in the child's activities • Any other adjustment which is needed to achieve an equitable result. This could be a necessary debt or expense incurred during the marriage which has been assumed by one of the parties

50. “Good Fortune’ cases • Where non-custodial parent is wealthy (for example, a professional athlete), the court may order that support beyond what is need to meet the child’s needs (consistent with the lifestyle of the parents), be paid to a guardian and supervised by the probate court. Finley v Scott, 707 So. 2d 1112 (Fla1998).