It has been such a tumultuous stretch of time in our country between the pandemic, social upheaval and economic challenges. If you are subject to a court order to pay child support such as after a divorce or as an unmarried parent and lost your employment or had to take a pay cut, you may be struggling to make ends meet.
This economic pressure makes it harder to meet your child support obligations. You are concerned about your ability to continue to support your kids and about the impact on them, along with your ability to meet your own needs.
Petition to modify child support
In such circumstances, Florida law provides a legal remedy. You can ask the court to modify the support order if you can show a substantial change of circumstances, that the change would be in the child’s best interest or that the child turned 18.
With employment loss, the issue is usually whether the spouse seeking to reduce their support obligation accordingly can show a significant change in circumstances that the parties did not contemplate. A substantial change allowing a reduction must be “significant, material, involuntary, and permanent” – a quote repeated in several Florida cases.
Voluntary or involuntary?
Florida judges look at whether the job loss was voluntary. For example, a parent paying child support could in bad faith leave a job voluntarily to create a situation where they may be able to get the obligation reduced. A voluntary job loss is not a substantial change.
This question is specific to the facts of each case – and voluntariness can mean more than its normal definition. For example, in one case, the payor spouse left their job because of new policies that reduced wages. He left to purchase a business to replace the lost income. Unfortunately, the seller had grossly inflated business value, and they ended up in bankruptcy.
While he (literally) voluntarily left his job, the court considered it involuntary because it was for “business necessity” and in good faith.
In other cases, quitting a job to return to school was voluntary with some exceptions such as when the litigant’s earning potential and job opportunities would be so much greater with the degree or training pursued. When an employer lets go of a party for failing a drug test or for misconduct, the job loss can still be voluntarily because the problematic behavior was deliberate.
Attribution of income
If the reduction in income was voluntary, the court “shall” impute income to the underemployed or unemployed parent, unless that person is incapacitated, or the circumstances were beyond their control. Florida statute has detailed requirements for the kinds of evidence the court must consider to determine the amount of imputed income such as qualifications, earnings levels in the surrounding community and recent work and salary history. Attributed (presumed) income is then used to determine the proper child support amount as if the attributed income were actually earned.
The court then looks at whether the unemployment or underemployment follows from the payor putting their own interests first or because they did not diligently make a sincere effort.
Takeaways
It is smart to consult an experienced family lawyer for advice and representation when job loss is making child support difficult. The legal and factual issues can be complicated in presenting a petition for child support for modification.
