Gainesville Personal Injury, Divorce and Alimony Attorney

Child Support, Incarceration and Imputed Income

When a parent is about to be or has been ordered child support and the paying parent is or is about to be incarcerated, then what? This is a common occurrence in divorce and paternity cases and like many things in family law, the answer depends on the facts of each case. There is a distinction in the case law between setting child support and supplemental petitions to modify child support.

There is a split in the districts as to whether child support can be set during incarceration. The answer differs when if the person paying child support lives in Gainesville or Ocala. The First District, which includes Gainesville and the rest of the Eighth Circuit has held that when setting child support, imputing income to an incarcerated parent is inappropriate. The First District contains the 1st, 2nd, 3rd, 4th, 8th and 14th Circuits) However, the Fifth District encompassing Ocala and the Fifth Circuit had held that does not serve to protect the child’s rights in their support and imputing income is appropriate. Both Districts have certified conflicts with each other but there has not been a resolving opinion as of the typing of this blog.

The Florida Supreme Court resolved the conflict regarding modifications of child support already ordered by establishing a procedure to deal with the problem. First, upon the filing of a Supplemental Petition for Modification of Child Support by an incarcerated parent the arrearages no longer are vested to the recipient. Therefore, a Petition should be filed as soon as possible, since money owed prior to the filing of the action to modify are vested and cannot be changed by the Court. Then, the trial is to place the petition in abeyance until the obligor parent’s release. Once the parent is released from incarceration, the trial court would hear the modification petition, taking into account numerous factors, including any additional considerations even taking into consideration if the crime was motivated to evade a child support obligation. The Supreme Court of Florida also specifically rejected a per se rule that would permit incarceration to be utilized as a basis to modify support, calling that “tantamount to authorizing a suspension or abatement” which they did not want.

Issues in family cases including child support can be much more complex than just using the formula to calculate support. A lawyer can assist in the process. We do charge a consultation fee in family cases, that means that we could never consult with the opposing party on the same issues and will perform a conflict check prior to setting a consultation. To get the process started, please click, call, text (352) 371-9141 or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Alimony / Spousal Support in a Florida Divorce

In some divorce cases, alimony can be awarded to a former spouse that is in need of spousal support if the paying spouse has the ability to pay. Alimony is considered after equitable distribution. The court may grant alimony to either spouse. The requesting spouse must demonstrate a need for alimony and the ability of the other spouse to pay alimony.

The need and ability to pay are developed through the discovery process. Each party to a divorce has an ongoing discovery obligation and the right to obtain information about the opposing spouse’s income, assets, debts and relative financial circumstance.

Florida divorce law provides for rebuttable presumptions concerning the length of the marriage for purposes of determining alimony. A short-term marriage is a marriage of less than 7 years, a moderate-term marriage is a marriage lasting greater than 7 years but less than 17 years, and a long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of a Petition for Dissolution of Marriage.

The divorce court will analyze the relevant factors to determine the proper type, duration and amount of alimony. There are four (4) types of alimony.

“Bridge-the-gap” alimony is to assist the receiving spouse transition from being married to being single and addresses short-term needs. There are limits as to the length and conditions of a bridge-the-gap alimony award.

“Rehabilitative” alimony is awarded to assist a spouse in establishing self-support through education, training or work experience to develop employment skills or credentials. Rehabilitative alimony requires a specific rehabilitative plan that places expectations upon the alimony recipient.

“Durational” alimony is when permanent periodic alimony is inappropriate and lasts for a determined period of time following a short or moderate term marriage or a long term marriage when there is no ongoing need for permanent support. There are limitations as to the period of time and modifications of an award of durational alimony.

“Permanent” alimony provides for the needs and to some extent the lifestyle established during the marriage. The recipient should lack the financial ability to meet the necessities of life following a dissolution of marriage. There are limits as to when a court awards permanent periodic alimony.

There is no formula and every case is unique unto itself. Everyone has rights and should know them and use them. To hire a divorce and alimony attorney, please click, call, text (352) 371-9141 or fill out the form. We will ensure there are no conflicts and charge a consultation fee prior to meeting with a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529