Many times people will want to try to hide assets or money prior to filing divorce. This is not wise. Just because you sold your car to your brother for one dollar, does not mean you got away with something.
A child support arrearage is when there is a child support order and the obligor does not pay all or a portion of the amount ordered. If a supplemental petition to modify that child support order is not filed, the amount owed to the oblige, or the non-custodial parent, is deemed vested. So how do you get out of a child support arrearage? As in all areas of the law, everything is a case-by-case basis. Let’s say there is a custody order and the former wife receives custody of the child in the court order. The former husband has to pay $500 a month. After the court order, this is for a divorce or a paternity action, the former husband takes actual custody of the child. Not legal custody, I am talking about actual custody meaning Mom has basically given Dad the child, but there’s been no court order saying so. That means the current law of the case is that Mom actually has custody, so therefore she would be deemed to have legal custody but Dad has actual custody, meaning the child is actually in his possession. I cannot tell you how often it occurs that Mom will do this, yet still believe that she should get child support every month. Truly amazing. But that is not where I am going with this particular instance.
Let’s say, again, Dad has actual custody but there’s no court order giving him custody. He still has a legal child support obligation, but Mom and Dad have agreed that Dad does not have to pay child support while he has the child. Then after a few years, shockingly, Mom comes back and says she wants all that money back that he was supposed to pay, that would be an arrearage that she would be going to court for.
The arrearage would normally be vested and there is nothing a person can do about it. But there is an equitable defense here. In fact, the Supreme Court has said there are three equitable defenses to a child support arrearage. Now let’s be clear about what an equitable defense is, it doesn’t mean the arrearage just magically goes away. It basically means that a court, using this law, can choose to basically ignore the arrearage. The case on point is Pittman v. Stanjeski. In Stanjeski, the court found “the following three equitable defenses may be appropriate grounds for relief: (1) payment - direct payment is made to the payee because of the exigencies of the family situation or a family emergency; (2) no further obligation to pay support - a minor child reaches majority, marries, enters the armed services, or dies, or a former spouse receiving alimony remarries or dies; or (3) change of custody - a full change of child custody has occurred and the formal custodial parent no longer supports the child or retains fiscal obligations relating to the child.” The court further found that “there may be other equitable defenses that can be raised based on other types of extraordinary circumstances. We emphasize that the underlying purpose of this process is to assure the payment of child support for the welfare of the child.”
So theoretically, in the fact pattern discussed, for the entire time that Dad had actual custody of the child, any arrearage accrued should basically be forgiven. This is not a slam-dunk. It should be a slam-dunk, but for some reason some trial judges do not act consistent with this. And that’s where an appeals process would have to take place. Before appealing, you have to look at the big picture. How much does an appeal cost versus how much your potential savings would be. As a side note, Dad cannot seek retroactive child support from Mom. In other words, Dad as a defense cannot counterclaim that he wants child support for the entire time that he had actual custody of the child. Dad would have to file what is called a supplemental petition to modify time and child support. A person cannot seek child support prior to the filing of a supplemental petition. A child support award can only go back as far as the date a supplemental petition is filed. So there is no counter if Mom wants to be unreasonable and seek arrearage for a time she did not actually have the child. You have to rely on the good judgment of the courts.
For more information regarding this issue and any other family law issue in Florida, go to Florida Divorce for Men Only. Our firm has nine offices in the state of Florida and only represents men. That is our only focus that is all we do.
Memorandums prepared by attorneys (it is important to remember that memorandums are arguments in the law. It is almost never a black-and-white issue. Some arguments consist of the below:
Issue: Whether modifying an agreed upon parenting plan is appropriate where the plan does not include a specific time sharing schedule after the child is no longer a newborn.
Florida statute 6.13001 governs whether a parent can relocate a child more than 50 miles from his or her principal place of residence at the time of the last order establishing or modifying time sharing. The statute provides that “the parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the non-relocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.”
It is the intent of Florida law, that the trial court have executive decision making of time sharing arrangements. Florida judges are required to apply the "best interest" standard in making decisions concerning time sharing and parental responsibility of children. In any decision involving a child, even one where an expert was provided an opinion, where two parents have an agreed upon arrangement, the court must evaluate the best interest of a child when making a decision concerning that child's relationship with their parent.
Equitable distribution should not include financial accounts that our client's are forced to use during divorce proceedings. It does not matter what the balance of the checking account was on the date of filing. If there was no misconduct, that balance is not subject to equitable distribution. A spouse has the right to deplete marital assets during the pendency of litigation to pay support, living expenses, litigation expenses, etc. The court should not include assets that have been diminished or dissipated during dissolution proceedings in an equitable distribution screen. A trial court commits reversible error by including assets depleted during dissolution proceedings in an equitable distribution screen, unless the spouse commits misconduct when depleting such assets.
Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short-term needs. Durational alimony is designed to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration if there is no need for permanent support. Permanent alimony is designed to provide the needs and necessities of life as they were established during the marriage. A trial court’s discretion regarding alimony is not limitless. Rather, this discretionary authority is subject to the test of reasonableness, which requires a determination of whether there is logic and justification for the result.
Family law does not just deal with divorce or formerly married couples for post-divorce actions. Family law also covers paternity actions. That is basically when people have children born out of wedlock. There are many times when people move in together, they do not get married and they build a life together as if they were married. One party will purchase a house and both parties will act as if it is jointly owned, but in fact it is not. Basically, only one person’s name is on the Deed and the other person decides, for whatever reason, not to put their name on the Deed. I’ve had many clients come to me over the years in this situation who want to get half of the equity out of the house. This is where the fundamental difference between a paternity action and a divorce action really kicks in. Basically, equitable distribution.
Can a person get a credit for child support arrearage that accrued during the time he resided with the child, even where he did not seek a modification order in advance of time the payments were due? This question comes up a lot. Basically, let’s say you have a child support obligation and the child comes to live with you for a while. First and foremost, nothing is guaranteed, you must file a motion to temporarily abate the child support or some type of motion for modification or something like that. It is always best case scenario for you to file something with the court. But let’s say you don’t. Let’s say the child lives with you for about a year and you just stop paying child support because you don’t feel like you should have to because the child lives with you. The thinking is obviously logical, but courts are not always logical, obviously. In a case, a person was ordered to pay child support to the petitioner. The date of the order was 2003. In 2007, the parties began residing together with the child again. For approximately four and a half years between 2007 and 2013, they were residing together for periods of time. The respondent requested the court give him some credit toward the arrearage that accrued during those times. He did not seek a modification order, as the parties had mutually decided to reside together again, the respondent was contributing to the support of the child in the home. Obviously. The respondent was paying rent, electricity, food, everything like that. Now in this circumstance, my goodness I cannot explain to you how important it is for you to go and file something with the court. But if you have a situation similar to this, which many people do, there is case law that helped you out.
Is it lawful for a court to excuse an arrearage from past due child support to the date when the children respectfully reach the age of majority rather than the date of filing the petition to modify?
A hypothetical situation: Client made unsuccessful attempts to modify his child support obligation at the time each of the three children involved reached the age of majority. While a petition to modify the child support amounts should have been filed earlier, the law does not preclude the court from excusing the support arrearages that have recently accumulated. These arrearages only recently began to accumulate and all the arrearages are for children that have attained the age of majority. The language of the final judgment clearly indicates it was not the trial court’s intention, at that time, for respondent to still be paying support for the children.