Child support in Florida is always owed from one parent to another when the parents are no longer parenting together. When does the obligation begin and how does the obligor parent pay the back child support owed? The answers depend on whether there is an order and on when a parent files for support or paternity under Florida law.
Back child support (often called retroactive child support) can arise whether an existing Florida child support order already exists or not. If an order exists, calculating what is past due is typically easy, the court will look to the date when the parents did not reside together, the income of the obligor’s income during the retroactive period, and the payments made by either parent.
“In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, 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. In determining the retroactive award in such cases, the court shall consider the following
(a) The court shall apply the guidelines schedule in effect at the time of the hearing subject to the obligor’s demonstration of his or her actual income, as defined by subsection (2), during the retroactive period. Failure of the obligor to do so demonstrate shall result in the court using the obligor’s income at the time of the hearing in computing child support for the retroactive period.
(b) All actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.” F.S. §61.30(17)(a)-(b).”
To decide whether to award retroactive support and how much, Florida courts apply the statutory child-support guidelines which looks at each parent’s monthly income.
“Each parent’s percentage of the child support need shall be determined by dividing each parent’s net monthly income by the combined monthly income.” F.S. §61.30(9).
Can You Waive Child Support?
The quick answer is no.
“It is well settled that parents may not waive their children’s right to support because that right belong to the children.” State Dep’t of Revenue v. Ortega, 682 So.2d 589, 590 (Fla. 2d DCA 1996)
Child support is not a requirement but rather it is an obligation imposed to parents by Florida.
“Child support is not a requirement imposed by one parent on the other; rather, it is a dual obligation imposed on the parents by the State.” Armour v. Allen, 377 So. 2d 798, 799-800 (Fla. 1st DCA 1979).
Back Child Support When The Parents Are Not Married
When the parents are not married, a parent or the Department of Revenue usually must first establish paternity before seeking a support order.
“Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise …[A]fter the birth of the child, a parent may request a determination of paternal responsibility and child support and for the creation of a parenting plan and time-sharing schedule pursuant to chapter 61.” F.S. 742.011
“’Paternity and child support proceedings’ means an administrative action commenced by the Department of Revenue to order genetic testing, establish paternity, and establish an administrative support order pursuant to this action.” F.S. 409.256(1)(e)
Florida’s child-support statute and implementing guidelines explicitly address retroactive support and provide that, in initial proceedings, a court may look back and apply guideline formula for a limited period.
Filing early is important because any retroactive award in an initial proceeding is measured from dates tied to the filing or the child’s needs, and the statute places limits on how far back a trial court may go.
“in an initial determination of child support, … 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.” F.S. §61.30(17).
Back Child Support For Married Couples
When parents are married and a support issue arises in a dissolution or other family-law proceeding, the same guidelines (mentioned above) control the calculation of child support and the same statutory framework governs possible retroactivity.
A family law court entering an initial support award in the context of a divorce has discretion to provide retroactive support where justified, but the court must apply the guideline worksheet, consider credits for payments already made during the relevant period, and explain any deviation.
“A court may deviate from the presumptive child support guidelines amount by up to 5 percent, without explanation, using the considerations in Fla. Stat. ch.61.30(11). Fla. Stat. ch.61.30(1). A deviation of more than 5 percent, however, required a written finding explaining why ordering payment of such guidelines amount would be unjust or inappropriate.” Henderson v. Henderson, 905 So.2d 901, 904 n.2 (Fla. 2d DCA 2005).
Back Child Support When a Child Support Order Has Already Been Entered
If there is already a support order, Florida’s enforcement toolbox includes administrative and judicial remedies: mandatory income withholding, interception of tax refunds, license suspensions, liens on property, and contempt proceedings where nonpayment is shown to be willful.
Florida’s Child Support Program monitors payments and if payments aren’t received, the Program takes steps to contact the obligor.
What Are The Differences Between Retroactive Child Support Payments and Arrears?
Retroactive child support is what a court can order for a period before a support order existed -it looks back and requires the obligor to pay for past months when support was not previously order.
In contrast, arrears are past-due payments that became due under an existing child-support order (basically missed monthly payments after an order’s effective date). Arrears remain collectible until paid, generally accrue statutory interest, and become enforceable as a money judgment or part of the support order.
“When the court orders the income deduction to be effective immediately, the court shall furnish to the obligor a statement of his or her rights, remedies, and duties in regard to the income deduction order. The statement shall include: (1) All fees or interest which shall be imposed.” 61.1303(1)(e)(1)
Practically, the two also differ in calculation and collection: retroactive support is calculated under the statutory guidelines for the retroactive period, and, once ordered, those sums become collective like other support; on the other hand, arrears are computed as the sum of unpaid installments under the existing order (plus interest and costs) and are subject to the full force of enforcement tools the state uses to collect past-due support.
How To Really Handle Back Child Support Owed In Florida
If you are owed back support, begin by obtaining a certified statement of arrears from the clerk or the Department of Revenue so you have a clear principal, accrued interest, and any costs.
With that number, you can ask for immediate administrative enforcement through the Department of Revenue and request the court enter a delinquency judgment and an income-reduction order; these steps convert unpaid monthly obligations into enforceable collection vehicles and allow interception of tax refunds and other remedies described in the statutes and administrative materials.
You’re probable wonder, what if the employer of the person who owes support doesn’t comply with an out-of-state order?
“An employer who willfully fails to comply with an income-withholding order issued by another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state.” F.S. §88.501.
If you owe the arrears, do not ignore notices. Gather any evidence such as paystubs, bank statements, proof of changed circumstances, and any other evidence that bears on your ability to pay. If you are served with a contempt motion, be prepared to present the court with documentary proof of inability to pay.
“The burden of producing evidence then shifts to the defaulting party, who must dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations. The court must then evaluate the evidence to determine whether it is sufficient to justify that the defaulting part has willfully violated the court order.” Bowen v. Bowen., 471 So.2d 1274, 1278-1279 (Fla. 1985).
Whether you are an oblige seeking support of arrears or an obligor facing enforcement, contact my Naples, Florida divorce law office to understand all of your options and ensure you take all the right steps.
FAQ Summary
Q: Can Parent’s Waive a Child’s Right to Support in Florida?
A: No. Parents may not waive the child’s right to support; that right belongs to the child.
Q: How Far Back Can a Court Order Retroactive Child Support In An Initial Proceeding?
A: In initial proceedings the court may award retroactive support for up to 24 months prior to the
filing of the petition. This is measured from when the parents stopped residing together with the
child.
Q: What’s The Difference Between Retroactive Support and Arrears?
A: Retroactive support covers months before an order existed and is calculated under the
guideline formula for that period; arrears are missed payments under an existing order and are
collectible as money judgments, usually with interest and enforcement fees.
Q: If I’m Owed Back Support, What should I Do First?
A: Obtain a certified statement of arrears from the clerk or the Department of Revenue, then
request administrative enforcement and/or ask the court for a delinquency judgment and income-
reduction order.
