Child Support Questions

[Ref]

State: Florida

Mediation agreement states that the parties are to work out a child support modification between themselves, if that doesn't work it is off to mediation, if that fails it is to go to court. She has been very difficult to deal with and extremely demading.

She has voluntarily been unemployed/underemployed for many years and provided a financial affidavit that is completly fraudulent. She is demading that DH send his Financial affidavit. His lawyer claims that CS calculation only requires income and allowable deductions and a tax return should be enough. She does not want that and is demanding that he send her a list of assets etc.

1. Would the use of a site like salary.com be acceptable for imputing income?

2. Can DH deviate from state guidelines due to:
    a. Life insurance premium he is require to have per divorce agreement
    b. parenting time (has SD for over 2 months in the summer plus every other holiday)
    c. Child care in the form of camp in the summer
    d. Child tax credit
    e. travel costs (BM moved to FL from PA after separation. DH has been paying all costs but new visitation order allows for 3x as much visitation.

3. Is it likely that DH will be allowed to have the rights to the dependency exemption based on the fact that BM is constantly unemployed thus unable to use the exemption?

4. Do you agree that if DH sends only a tax return he is in complience to the mediation order that they "share financial information"?
 
5. If she is receiving TANF (temporary assistance for needy families), how does that effect the case?

6. When finalizing the agreement, do we just draft up a letter stating the support amount and conditions, sign with notary and submit to court or do we fill out specific forms?


Thanks for your help!!  

[socrateaser]

>1. Would the use of a site like salary.com be acceptable for
>imputing income?

Imputing income to a person, with regards to their earning capacity, require proof of (1) talent and ability to work; (2) availability of work; (3) unwillingness to obtain available work consistent with that person's talent and ability.

The salary.com site contains information relevant in demonstrating what a typical person can earn in a particular field, in a particular locale. All of this goes to proof of #2 above. You must also "lay a foundation," i.e., provide the court will all of the methodology used by the site, and demonstrate to the court's satisfaction, that the data returned by the site is competent to be used as evidence.

But, to impute income, you must also prove #1, and #3. For #1, you must either gain some admissions in testimony from the other party as to their talent and ability, or you must have the person evaluated, or show that person's actual earnings and employment in a particular field.

For #3, you must show that the person has simply not sought to work -- this is usually pretty easy to do, because if you prove that there is work available, and that a person has the necessary talent, ability, qualifications, and that the person is not working and has not worked recently, then the court can infer that if the person is not working, then it must be because they don't want to work.

>
>2. Can DH deviate from state guidelines due to:
>    a. Life insurance premium he is require to have per
>divorce agreement

If life insurance can be ordered by the court as part of the support obligation in FL, then DH can ask the court to consider its cost as a deduction from guideline. However, if DH agreed to pay for insurance even though the court had no original jurisdiction to order it, then that is no longer support -- it is a property right of the other party, and the only way that DH can avoid it is by declaring bankruptcy, or getting a release from his ex.

>    b. parenting time (has SD for over 2 months in the summer
>plus every other holiday)

If DH can prove that he is routinely exercising physical responsibility for the child in an amount greater than what was originally ordered, and FL guidelines consider the amount of physical responsibility as a factor in computing guideline support, then yes -- otherwise, no.


>    c. Child care in the form of camp in the summer

Child care offset is available only to the extent that it meets the reasonable cost of childcare that is necessary in order for the parent to obtain/maintain or train for employment.

>    d. Child tax credit

Tax "credits" cover a lot of territory, however, a person is generally only entitled to the various tax exemptions and credits for a child, if they are they exercise custody over the child more than 50% of the year, or, if the other parent agrees in writing to release the tax exemptions, or, the court orders the exemptions in favor of that parent.


>    e. travel costs (BM moved to FL from PA after separation.
>DH has been paying all costs but new visitation order allows
>for 3x as much visitation.

The court generally has discretion to award transportation costs coinicident with the transfer and exercise of custody. You must show that these costs are fair and reasonable and in the child's best interests.

>
>3. Is it likely that DH will be allowed to have the rights to
>the dependency exemption based on the fact that BM is
>constantly unemployed thus unable to use the exemption?

I don't know. Depends on the judge and the specific proof and defense offered.

>
>4. Do you agree that if DH sends only a tax return he is in
>complience to the mediation order that they "share financial
>information"?

A person is generally entitled to the production of any evidence if it is "reasonably calculated to lead to the discovery of admissible evidence." So, if you have a specific proof that you intend to offer, and you can show that the other party's tax return will provide something that will tend to make your proof more likely than not, or even if you can show that the tax return will assist you in obtaining the proof that you require, then you can ask the court on motion to compel the production of the tax return.

>
>5. If she is receiving TANF (temporary assistance for needy
>families), how does that effect the case?

She will probably have assigned her right to child support to the State where she receives benefits, and you will have to negotiate/litigate with the State on any modification of support (transportation costs, btw, are deemed in the "nature of support").

>
>6. When finalizing the agreement, do we just draft up a letter
>stating the support amount and conditions, sign with notary
>and submit to court or do we fill out specific forms?

I don't practice FL law, and I don't know if the courts use form based pleadings or not. The ultimate object/instrument is called a stipulated/agreed/consent order/judgment/decree (depending on circumstances/jurisdiction).