Beware, visitation can affect child support
I hate to give away "dirty divorce secrets" like this one. It's not that I want to keep the secrets to myself and to other family lawyers who've done this long enough to know all the tricks. It's just that, by trying to save people from getting stung, I know I'm also helping people to "sting" others. I'm hoping this advice will be used to help people get child support they deserve and not helping people from tricking others into lowered support.
Still, we lawyers have a saying: "The truth will out!" Yeah, I never really understood that saying, either, but it's by Shakespeare, so it must mean something important.
So let me out the truth on how being generous about visitation affects child support. I can only hope, as I always do, that this knowledge will be used for good and not evil.
You already know that giving the kids more time with the other parent is usually good for the kids. You know that the more exposure the kids have to your ex, the more well-rounded they'll be, the more they'll be able to adjust to the divorce. I applaud you for this sentiment. Studies show that kids do better when they have significant contact with both parents. Agreeing to more visitation with your ex is usually a good idea.
Now here's the reason not to do it:
Under Florida's child support guidelines, if you kindly (or even unkindly) agree to allow your ex to have over 40% of the overnights (the family law system thinks in terms of overnights, not days, when calculating time with the kids) your child support could be--and almost certainly will be--drastically reduced. I've seen child support reduced from $1500 per month to $200 per month. That's how much kindness can cost you. Deciding for instance, to give your ex all of the summer? Guess what, your child support just dropped like rain in a Florida July. (In big buckets, for those of you from up north.) You think giving your ex 50-50 "custody" is the best way to go? You may just wipe out child support altogether. This is a sad truth.
I don't want to convince you not to agree to a lot of visitation. In most case, you should agree to lots of visitation. More often, it's the fair thing to do, the right thing to do, the best thing to do for the kids. Just keep in mind what will happen to your support. It's usually good to offer lots of visitation. It's always bad to be unable to afford to feed your kids.
posted by Brent @ 6:15 PM
27 comments
27 Comments:
Hi Brent,
I'm from 'up north,' England in fact, but we have a child support system not dissimilar to Florida's, i.e. one which bribes mothers to prevent their children from seeing their fathers (we also get rain).
I wonder if you can explain to me – certainly no one this side of the pond can – why it is that a father who is undertaking half of the parenting should still be paying his ex wife anything. Or in some rare cases why she should pay him. Surely where parenting is evenly shared there should be no need for money to change hands at all – especially given that she probably got the house.
Parenting isn’t just about signing cheques (sorry, checks); child support should be about fully supporting your child, which means supporting his relationship with the other half of his family, and not just about cashing cheques/checks.
Trust a lawyer to reduce what should be a loving, nurturing relationship to a purely financial one.
I see you like quoting Shakespeare. Here’s another Shakespeare quote for you; I hope you like it:
“The first thing we do, let's kill all the lawyers.”
Im going through a pretty nasty (Florida / Hernando County) divorce involving three children. Thanks for having this blog, it has made for a very interesting read! The "Beware, visitataion can affect child support" post was a real eye opener. Thanks!
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Ummm...Child support is for the benefit of the child. So, if the child is spending more time with the Dad (which is very good for the child) then the Father should have some of the Child Support he would otherwise pay to the Mom for the child while the child is with him.
If otherwise - what would the Mom do with that money of thie child was with the Father ?
I agree, and so do Florida's guidelines. If the time with the payor reaches 40% or more, the child support becomes drastically reduced -- often completely eliminated -- under Florida's guidelines system.
I must say you are missing so much of the point of child support. You forget that the dad probably made more money the whole marraige and the child support will help keep the children living the lifestyle they are accustomed to. So when the kids are with dad mom is still paying the bills.....
I see what you're saying, but I think the idea is that the primary residential parent (the mother, in your example), isn't paying the bills when the other parent is having timeshare. Your point, I think, is that the mother still has to pay the rent, even when the kids are with the father for an extended period of time. The legislature, however, saw it differently: the mother isn't paying for the food for the kids, the gasoline to take the kids around, the money to wash the kids' cloths, etc.
Also, bear in mind that the purpose of child support isn't to "help keep the children living the lifestyle they are accustomed to," that's what alimony is for, and the two shouldn't be confused. Most children, I've found, are as happy in a two-bedroom mobile home as they are in a seven-bedroom mansion.
Remember, too, that child support continues to be paid, even though the children may spend considerable time -- perhaps an entire summer -- with the non-custodial parent. I spend a lot of time listening to father's gripe about why they have to pay child support all summer despite the fact that they have the kids.
Lastly, child support is based on the parties' current incomes, which may be, and usually is, significantly different than it was during the marriage. Income during the marriage is irrelevant to current child support, so the fact that one party earned more during the marriage is irrelevant to child support calculation.
I have a 9 yr old son, and 7 yrs ago I got divorced and I agreed to 50/50 custody with No child support. Now my ex has quit his job and works under the table, he pays no rent, no car payment, etc. He is constantly threatening me with Child Support because I make 4 to 5x what he makes. He pays no insurance, no medical bills (even though stated in our divorce 50/50), no prescription, no daycare, no nothing (well maybe a haircut). I would like to know what are my rights? Part of me wants to give him his son so he will stop abusing me, mentally with my son. So my son can have some peace. Somebody help me who knows.. Kim
You have a pretty specific factual question. Why don't you email me (brose@attorneysusa.com) or call me (866-200-8855)? If you live in Florida, I can give you some specific advice. If not, I can help you find the right lawyer.
I am in the same boat as the last poster on this blog the only difference is that I am not a Dead bEAT Dad. I feel the same way My Ex has been in three oops now four different relationships with men and have introduced the Children to these men. I have had my visitation with held from me by my ex and I can not seem to win. I feel like giving up my kids for the same reasons.
Giving up your kids is never the answer. You're only hurting the kids if you do that. Why don't you approach it the other way: why don't you go for custody?
The Florida law on who gets custody, section 61.13, sets out one of the main reasons to decide who gets custody: which parent will be the least likely to deny visitation?
Judges hate denial of visitation worse than almost anything. Based on what you've said, denial of visitation isn't even the strongest point of your case. Don't give up the fight; begin it!
But is the whole "40% of the overnights" thing automatic?
I live in another state (military) and have my kids for half of the summer. My attorney told me that I must continue to pay my ex $1500 a month in child support no matter what. Reading the statute (why can't they write the $%&^% thing in ENGLISH), it sounds like the judge MAY order a reduction, but doesn't HAVE to.
My divorce decree says only that I pay my ex $1500 a month and has no clause providing for reduction when I have the kids. My attorney said that there used to be a law stating that if I had the kids for the full month, I could reduce my child support by half, but it's long gone.
I don't think I should have to go to a judge to get my child support reduced for the solid month that my kids spend with me every summer--seems like a no-brainer that my child support should automatically go down. Can you enlighten me?!
You're right about the child support statute being complicated. In fact, like most of the divorce forms (which were intended to be simplified for people who never went to law school), they read like the tax code. Your eyes will glaze over about two seconds into them, and you'll probably either pull your hair out or fall asleep, depending on the type of person you are.
Yes, the 40% reduction IS automatic. When your guidelines scoresheet was completed, the second page (the one that reduces support because of 40% overnights) should have been completed if it applies to you. The statute, § 61.30(11)(b), does not say that child support "may" be reduced, it says child support "shall" be reduced.
But in your case, though, I'm not sure the reduction applies. Remember, the reduction only applies if you get 40% of the overnights in an entire year. Getting 40% or more nights in a month doesn't apply. In other words, you have to have the kids for 146 nights per year before support gets reduced. Child support is amortized over the year, and just because you get the kids for a whole month doesn't mean you don't have to pay for that month.
Otherwise, it would be the equivalent of saying, "We spend June at our friend's house in Maine, therefore we shouldn't have to make the June mortgage payment on our house in Tampa."
The reduction really was meant to apply in situations where parents have 50/50 ("rotating") custody, or something pretty close to it.
This is sick. A father who is taking care of their children 50/50 shouldn't be paying child support. That is the only part of the law that is fair.
But a mother can do everything in her power to stop the father from seeing his children (and always succeed) and collect more child support!? As it is the child support laws don't allow for a father who makes only a modest income to even live on his own. When a man who brings home $1000 a month must pay out $500 a month in child support, you tell me where in the U.S. he can actually pay his own rent, let along pay for gas to get to work.
We seem to be forgetting that fathers are only 1/2 of the parenting bundle and should not be punished for having had children with their once wives!
"A father who is taking care of their children 50/50 shouldn't be paying child support."
Why not? Let's take a situation in which the father makes over $1,000,000 per year and the mother makes minimum wage. Is it fair for the children to live in opulence one week then poverty the next? One idea behind child support is to allow the children to live in the standard of living they would if the parents were married. Clearly, this couldn't happen unless child support were paid even in the 50/50 custody situation.
"But a mother can do everything in her power to stop the father from seeing his children (and always succeed) and collect more child support!?"
An absurd statement. At our firm, we've never failed to obtain custody or visitation for a father, and we've never failed to have a mother held in contempt for refusing visitation. We've even had custody switched to the father on many occassions because the mother refused visitation. The same can be said of almost any family law firm in Florida.
"When a man who brings home $1000 a month must pay out $500 a month in child support, you tell me where in the U.S. he can actually pay his own rent, let along pay for gas to get to work."
Florida child support for a man who brings home $1,000 per month, which is well below minimum wage, by the way, should be $239 per month for one child or $376 for two children, not $500.
But, that aside, here's a harsh reality: children are expensive. Children are very expensive. Now here's a secret: if you can't afford them, don't have them!
Weekly, if not daily, I get posts from men claiming to be "father's rights" activists. I'd allow the posts from every one of them if I really believed they cared about fathers' rights. I'm a huge believer in fathers rights. I've proposed a system in the past in which non-custodial parents should be appointed lawyers to assist in seeking visitation. These lawyers ought to be at no charge, just like the lawyers who seek child support. I've suggested that the loss of the love and affection of the fathers who don't recieve visitation is probably more significant to children than the loss of the money from those who don't pay child support.
But I end up blocking most of these posts. Why? Becuase they're always about the money. Everyone complains about how the "system" (I guess that's me) is making so much money (if I wanted money, I sure wouldn't be a family lawyer or a family law judge) by turning them into an "ATM dad."
I represent both dads and moms seeking and receiving child support. I represent both dads and moms seeking and receiving visitation. The fact is, getting visitation is a breeze.
Here's how it works. Me: "Your Honor, I represent dad, and we want visitation." Judge: "Okay, mom, give dad visitation on X day at X time or you lose custody." Done.
Here's how getting child support works. Me: "Your Honor, I represent mom, and we're looking into the dad's income, but we think he lied on his taxes, and he's getting money under the table, and he says he makes nothing, but he just bought a new BMW, and we were going to garnish his wages, but he just quit his job, and we're not sure where he works now, but he may work for his brother who is lying about what he pays him, and we may need to take depositions..."
Get the idea? Getting visitation is a breeze. I love those cases. Getting child support stinks. Those cases are a lot of work. A whole lot of work.
So, on this blog, I welcome all posts from fathers' rights activists. I fully support fathers' rights activists. Heck I AM a fathers' rights activist. But don't give me this nonsense about how you have to support your kids and can't get visitation.
Men who won't step up to their duties as fathers? That's what's sick.
I have been separated for a year now and have been enjoying every weekend from Friday night to Sunday night. I would love to see my son more and was recently getting him vevery other week on Thursdays until monday morning. My wifes lawyer told her that child support would be reduce and now she will only let me see him every other weekend. My heart broke when I heard this news! He is the highlight of my week! I work all week and any extra time is reserved for him. Do I have a chance for 50/50 custody?
Appellate courts in Florida have instructed divorce judges to stay away from 50/50 (we call it "rotating") custody, except under limited circumstances, but I've found that, more and more, divorce judges are willing to order 50/50 custody. Newer studies are coming out that show that kids are better off with more substantial involvement by both parents, not just the old, "every other weekend" thing. Some judges around the state have even surprised me a bit by suggesting it. I think that, in the next few years, 50/50 custody will become more the norm than the exception. There is even considerable talk that the legislature will amend Florida statutes to favor 50/50 custody next year.
But don't get your hopes up. Rotating custody is still rare, and most judges are reluctant to award it.
On the other hand, most judges hate when one parent unilaterally modifies the visitation to manipulate child support, which is just what has happened in your case. I don't think she'll get away with it. It's very possible that a judge would agree that, since you've had Friday overnight to Sunday overnight for a year, you've established an appropriate visitation. In other words, you probably have a good argument to, at least, keep what you have.
One more thing. Is there no visitation order in place right now? If there is, what gives her the right to change it? If there isn't, why does she think she can unilaterally change the visitation schedule? You need to assert your rights as a father. Get a lawyer right now and start standing up for your (and your son's) rights!
Currently I am paying roughly 40% of my monthly income in child support to my ex. (2 kids).
Our agreement allows me 2 nights a week with the kids and every other weekend (Saturday night only). I had wanted Friday nights as well during the weekend, but that would have put me over the 40% mark.
As it stands I often keep the kids on extra nights. I have kept them more than 18 extra nights a year, which does in fact put me above 40%, but this is obviously not reflected legally.
The ex does not want to change anything legally as it would drasticly effect her income and stability.
Do I have an option here to change it legally? I am already keeping them more than 40% of the time. Why wouldnt a judge allow the change legally?
The current legal arrangement literally cripples me financially and am currently living with family to have a good home for me and the boys. It is really tough not to be able to provide a home for my kids like i used to.
Thanks,
J
I think a judge will reduce your child support to the "40%" level, but then, the minute you file your motion to modify child support, what's to stop her from making absolutely sure that you never get those extra nights again, causing your child support to go right back up?
Ok, I live in Florida, and get the whole child visitation issue! However, how about the reverse Why shouldn't the noncustodial parent who doesn't visit at all (or very little), thus not exercising visitation rights penalized and have to pay more? We all know that children should have BOTH parents involved in their lives, and maybe a monetary penalty would help?
I think it's a good idea, but not as a penalty. How about this: if the non-custodial parent is not exercising visitation, that means the custodial parent is footing a larger portion of the bill.
It means the custodial parent never gets any break from feeding the kids, using gas to get them to soccer or dance practice, using electricity to wash their cloths, etc. I agree, we should include a bump in child support where visitation is never exercised.
Good idea. I'm all in favor of it.
My son has a 14 month old son and he pays $800 a month in child support which is taken from his paycheck and Tallahassee handles the disbursement. His ex-girlfriend has a son by another man who pays no child support. He supposedly is a full-time student and a server in a restaurant and changes jobs frequently. The ex-girlfriend lives in subsidized housing, gets food stamps and WIC subsidies. She will not work, however, when they went for child support she stated that she had $1000 monthly income. She has NEVER made a $1000 a month. When my son gave her some extra money ($300) she sptent is on a tattoo. Her oldest son tells me that he eats no breakfast except on the days that he goes to school. She called my son and told him that she needed money because his son had no diapers and he would just have to stay in the same dirty diaper if my son did not help her out. She is mad that he will not pay her car payment and car insurance in addition to the $800 a month. Yet she brings in a different boyfriend as soon as the old one walks out. So my son feels that he is supporting the BOW (boyfriend of the week) as well as her other son (which my son feels very sorry for and takes him whenever he gets his own son). My son is now living with us so that he can pay all of his bills. This is the life of a "dead beat dad" as she calls him. Yesterday he was told that he was $2714 in arrears. He called the federal agency and they told him they could not help him over the phone that he would have to come to their office which would probably be a 3 hour wait so now he has to take off of work to go see what this is all about. Of course if she has to show up in court she will be there with the high collar and long-sleeved outfit on so the judge won't see how many piercings and tattoos she has and figure out where the money is really going. I have always taught my children about responsibility and a good work ethic so needless to say I am at a loss to explain to my son how his ex-girlfriend is getting by using the system as she is. His son was also sick and she took him to the ER but when she found out that there was a ER visit charge on the insurance that my son is paying for through his company she used her medicaid card. She knows all of the ropes and since we have NEVER used the system we are at an extreme disadvantage. So much for "Father's Right's" in Florida. My son is adopted and he lives for this little boy but she is making his life a living hell.
So stop complaining and help your son file a custody suit. How long are you going to let this woman abuse your grandchild?
I live in Florida and agreed to 50/50 parenting schedule with no child support because I thought it was fair and reasonable. However, when the other parent (in my case - the father) is not doing 50% of the parenting, it does not work in the child's best interest. My ex took advantage of the fact that I am a nice person and suckered me into the 50/50 visitation schedule. He conveniently has a lawyer friend who advised him to take advantage of the 40% visitation schedule to be free of paying child support (of which I never asked for to begin with). Since then, he has exposed her to several new girlfriends, taken her late to school over 19 times in the past school year, left her overnight with other family members and friends so that he can go out and threatened her that if she told me, he would never see her again. The list goes on and on. My child is now seeing a psychologist on a regular basis and is deeply affected by many of the things her father has exposed her to since the divorce (including pornography!) Most importantly, my child is suffering the consequences of this arrangement, and I am already $10K in debt with lawyers and a guardian ad litem trying to undo the current visitation schedule. It has been an absolute stressful nightmare. I never even cared for child support. I just wanted to keep things fair. 50/50. Instead, I am the only one taking on the parental responsibilities and expenses that come with raising a child, and he is getting away with his immature and irresponsible behavior.
Now, I truly believe it's a reasonable law for reasonable and responsible parents who are mature and capable of raising a child with the best interests of the child in mind. I also believe it is good for the child as long as BOTH parents are doing their part. The problem with the law is that just because the child spends the night with a parent, it does not mean that parent is acting the role of a parent - it's more like a babysitter. In some cases (my case) a bad babysitter that would be fired. For those unfortunate people like myself, 50/50 visitation, or as they call co-parenting, can be a big mistake. Be careful what you agree to. Undoing the visitation schedule is difficult and EXPENSIVE!! And most importantly, it can be traumatizing to your child.
I agree with the anonymous poster above, and I write only to comment on one item and clarify another.
First the comment. I agree with the poster that is often expensive for the parent and sometimes difficult on children to make changes to a visitation plan so, when settling your case, do your best to make sure the plan is what you and your children can live with for the foreseeable future.
Next, the clarification. "50/50" custody is NOT called "co-parenting." The term "co-parenting" describes the act of raising children between two parents who are not married. "Co-parenting" is the cooperation that goes on between two parents who are divorced or never married and who must decide who the children's doctor is to be, which school they'll attend, what religion they'll be raised in, how visitation will occur, etc. The legal term for "50/50" custody is called "rotating custody."
Hi Brent,
Thanks for the blog, it offers better info thann the bitter divorced guy in my office.
Here's my situation; I am a construction manager with an average salary, my wife is a corporate lawyer and has the equivalent of three normal salaries. -Oh yeah, we also hate each other and want to get divorced. She is threatening me with limiting the access I will have to my son, which would be devastating. Should I just assume she will get custody? Also, as you may be able to identify with, she accumulated tremendous debt, both scholastic reimbursement and revolving credit, while finishing her law degree. The latter, I have bought out on my own credit cards in order to reduce the total amount of our family income going to interest. Now, with our talks of divorce, she says that a judge will see this as no less than 50% my obligation. Is she correct?
Thanks,
Cursed
First, do not, do not, DO NOT assume she will get primary custody. This is the mistake most fathers make. They just give up and roll over, thinking, "The mother always gets the kids, anyway."
It just isn't true. All else being equal, I suppose judges probably award the kids to the mother, but when is "all else" ever really equal? And mothers do get the kids most of the time, but that's only because fathers accept this or allow this to happen. Just the fact that she is threatening to limit your access to the kids makes me think that you may be the parent who should have primary custody.
The first rule that judges [are supposed to] look at when determining custody is "who is more likely to offer frequent and continuing visitation to the other parent." (my paraphrase) Obviously, that's not her. Besides, most of the new corporate lawyers I know are way too busy for the kids. (I'll get letters for that statement!)
As to the debts, you probably know that Florida works like a community property state: the debts are split equally. But student loans are different. The Florida appellate courts have said that you don't have to pay on a student loan that you can't use. In other words, you can't take the Bar Exam, so you shouldn't have to pay for a law degree. On the other hand, if she wants to give you half of her income (or her practice's income) for life, then you should have to pay half her student loan. Sound fair? It does to me.
Tell her you won't give her coorperate law advice if she'll stop giving you family law advice. Tell her also that her case isn't as good as she thinks it is.
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