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It's The Law: Support Of Other Children May Reduce Court Ordered

Q: A few years ago my girlfriend and I had a child. She had a lot more money than me and she never asked for child support. I have since married and have 2 other children. My former girlfriend is suing me for child support and says I will have to pay based upon Florida's Child Support Guidelines. Will the amount I pay be reduced because I have other children?

A: Florida child support is determined by the court under Section 61.30 of Florida Statutes. That statute has a chart which establishes guideline amounts for child support based on income. In general, the net after tax income of both parents is combined to determine a total amount of child support under the chart. Child support paid by the non-custodial parent is determined by multiplying the total child support amount by the percentage of total net income attributable to the paying parent.

The statute is an effort to limit dispute about child support. However, it recognizes that circumstances of each case can impact the appropriate child support amount. It allows judges to vary 5 percent from the guideline amount in discretion of the judge and without explanation. Judges may also award an amount which varies by more than 5 percent, but only if they include in the award a written explanation of why the guideline amount would be unjust or inappropriate.

The statute mandates deduction from income of any court ordered support for other children which is actually paid. It does not specifically address deduction for support not ordered by a court. Nevertheless, judges have considered other support obligations as a factor to reduce what would otherwise be paid under the statutory guidelines. The recent case of Ogando v. Munozillustrates this flexibility.

In the Ogando case, a father with 3 children was sued by the mother of a fourth child. The mother sought to establish paternity and child support. The final judgment determined paternity, awarded the father visitation and awarded the mother child support. The trial judge refused to consider the father's support obligation for his 3 other children living with him, in large part because the child support statute only provides a deduction for child support ordered by a court and actually paid. The appellate court disagreed.

The appellate court explained that the child support guidelines do not directly address the father's situation. The father was not entitled to a deduction from gross income for the support he provides to his 3 other children, because that support was not ordered by a court. However, the court noted the statute allows a trial judge to adjust child support to achieve an equitable result.

The court referenced a number of other Florida cases in which appellate courts had opined trial judges had discretion to consider a parent's obligation of support to other children, even when it is not court ordered. Many of those cases also held that the trial judge not only had authority to consider such obligations, but that failure to consider other support obligations was an abuse of discretion.

It is important that the other support obligation is one that the parent actually pays. In the case of Henderson v. Henderson, a father sought modification of child support. At hearing, the father introduced evidence that he had a child from a prior relationship and children from a later relationship too. The general master imputed income to the mother of the previously born child and determined that the father's child support obligation for the child would be $603.00 per month. A similar calculation was done for 2 children of the father that were born after the child in the case, concluded the father would be obligated to pay $854.00 per month in child support for those children. The general master deducted those amounts from the father's gross income in determining child support.

The appellate court reversed, noting that the statute does not allow deduction of hypothetical amounts from gross income, only court ordered support that is actually paid. The court went on to explain that evidence of amounts actually paid would be needed to consider the other support obligations under any circumstances.

In these cases, evidence is important. A parent must show other support obligations and actual payment of those obligations. That can require documents, witness testimony and in some cases even expert testimony to apportion a parent's expenses for housing, utilities, groceries and others which are not clearly devisable on a per person bases. These issues can be complex. You should retain an experienced attorney before proceeding further.

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