Well, that is a rough take on an old nursery rhyme. What we mean to ask is how is child support determined if there are children outside the marriage?
Broadly and with narrow exception, Florida law seems to favor older children when it comes to setting or modifying child support when they are from a previous relationship as compared with later-born kids from other relationships. State statute is consistent with Florida cases establishing that when a parent with a child support obligation later makes voluntary life changes, the new circumstances are rarely grounds to decrease a pre-existing support order for earlier kids.
And state courts have said that this does not violate the younger children’s constitutional right to equal protection under law.
Child support revisited
The Florida child support statute is extremely complicated, but a simplified summary might be that the court looks at the combined net income of the parents, applies a guideline or formula to determine how to split the financial responsibilities for their kids, considers factors allowing variation from the formula amount and orders an appropriate child support obligation for one of the parents.
We have published a two-part post on this process. For more detail, please see part 2 of that blog, which also links back to part 1.
Earlier-born or adopted kids
A court usually establishes child support orders in divorce proceedings, but child support also comes up in other contexts like paternity petitions or requests to modify previous child support orders. When a parent has children born or adopted during previous relationships, may the judge consider their needs at the time of a later child support proceeding?
A parent’s net income for the purpose of the child support is their gross income minus allowable deductions. The law allows subtraction of “[c]ourt-ordered support for other children which is actually paid.” So, a pre-existing child support order for earlier children reduces the paying parent’s income available to calculate support in a current proceeding for later kids – as long as the parent is current on that earlier obligation.
Because of the requirement that to be deductible a child support payment must be court ordered, in one case the trial court refused to subtract from income monthly child support for earlier children because the father did not pay it pursuant to a court order. Because the father regularly and voluntarily paid it anyway, the appeals court allowed the deduction. It based the exception on a provision in the statute permitting deviation from the formula amount for a “reasonable and necessary existing expense or debt” if it would “achieve an equitable result.”
In part 2, we will talk about child support modification proceedings where the obligor (paying parent) now has more children from a later relationship.